Complainant

Respondent

Parties

Stirling  Taylor

P Mulrine And Sons (Sales) Unlimited Company

Representatives

Cathy McGrady BL

Patricia McCallum BL

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-00070948-001

18/04/2025

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

CA-00070948-002

18/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00070948-003

18/04/2025

The complainant, Mr Sterling Taylor, worked with the respondent for approximately 10 years.  He made a purchase of a tool for another employee’s personal use through the respondent company in order to avail of a discount.  On two occasions, he purchased a keg of Guinness for a charity event, paying cash to an employee of the Respondent.  The respondent investigated these matters resulting a disciplinary process and the dismissal of the complainant for Gross Misconduct.  The complainant alleges also that he did not receive his entitlement to Notice and that he did not receive a copy of his terms and conditions of employment

Evidence was given by oath/affirmation at the hearing for the complainant by Mr Stirling Taylor, Complainant,  Mr Mike Swan, Maintenance Technician , Mr Robert Nessbert, Contractor, Ms Anne Taylor (complainant’s spouse) and for the respondent by Ms Claire Hegarty, Accountant, Mr Stephen Neeson, Head of Operations, Mr John Doherty, Financial Controller, Mr Mark Mulrine, Chief Operating Officer and Mr Jonaha Lokugamage, Contractor.

All evidence was subject to cross examination.

All documents submitted were considered by me in reaching my decision.

The Complainant commenced employment with the Respondent in 2014 as a Maintenance Coordinator.

In the course of his employment, the Complainant, similarly to other colleagues, purchased orange juice from the Respondent. Initially the Complainant was instructed to speak to an employee in Accounts,( Mr X) about doing so, and he thereafter purchased juice from the Respondent by contacting Mr X about the transaction, without any issue whatsoever.

As the Complainant was used to dealing with Mr X in relation to purchasing juice, it made sense for him to contact, Mr X about other transactions. The complainant acknowledges that he had enquired about helping out a colleague to avail of a black Friday discount from and outside company, again on the understanding that the transaction was carried out as required by accounts.  In relation to the purchase of tools through the Company, the Complainant’s enquiry was whether it could be done, and it was Mr X who advised that it could.  It must be noted that this was out of kindness to a colleague and not for any personal gain to himself.  The Complainant did not ask for the transaction to exclude VAT.  It was Mr X who indicated that VAT could be excluded.  The Complainant was surprised about that and at all times, made it clear that VAT would be paid if Mr X was incorrect. There was no PO number in relation to the transaction with the outside company as the item was for a colleague personally and not for the Respondent Company and the absence of a PO number was to ensure full transparency as it meant the invoice would be flagged with accounts.

In 2022 and again in 2024, the Complainant similarly enquired with Mr X whether he could purchase a keg and subsequently a half keg of Guinness zero (non-alcoholic).  Both requests related to charity events and Mr X advised that it was possible to do so.  There was no indication that any further authorisation was required. Full payment for the keg and half keg was made to Mr X at the price advised by him, and the Complainant was not aware of any issue in relation to the transaction.

A purported investigation was carried out in which the Complainant was interviewed. There was reference to an interview carried out with Mr X but the Complainant was not provided with any notes from the meeting or the opportunity to respond, beyond a matter put to him during the disciplinary hearing.  There does not appear to have been any further investigation or witness interviews and there was no investigation outcome notified to the Complainant. 

The Complainant did not admit to dishonesty.   What he in fact admitted, is that he had purchased a keg and a half keg (non-alcoholic) for charity events in 2022 and 2024, for which he understood he had appropriate permission, and in the manner that he was instructed by Mr X in accounts.

 A disciplinary hearing was then carried out on 19 December 2024, which was biased and prejudged.   The Complainant was unfairly summarily dismissed by Marc Smyth following the said meeting on 19 December 2024.   It is submitted that there were not substantial grounds justifying the dismissal and it was therefore unfair.  The sanction of summary dismissal imposed, in the circumstances was grossly disproportionate to the conduct of the Complainant.  At all times, to the best of the Complainant’s understanding, he had appropriate authority and appropriate payment was made.

In Frizelle v New Ross Credit Union Ltd. [1997] IEHC 137, in considering the premises that must be established to support a decision of dismissal, Flood J. stated inter alia:

“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.”

The Complainant had no prior warnings and his long successful career was completely disregarded.   He was at all times acting in a transparent manner and on the basis of information given to him by Mr X.  There was no theft and no dishonesty.  

No consideration was given to sanctions short of dismissal.  On the contrary, Mr Smyth told him that it was “out of my hands”.

From the Complainant’s perspective, it never occurred to him, having been informed that the transactions at issue were permitted, that he was potentially exposing himself to dismissal. Had he known that the transactions were not permitted, he absolutely would not have participated in them. In those circumstances, the Complainant could simply have been advised that similar transactions could not be carried out and/or that further authorisation was required going forward.  He could have been issued with a warning to reinforce these points if necessary.  

 In Governor and Company of Bank of Ireland v James Reilly Noonan J. found that the bank's response in dismissing the Complainant was entirely disproportionate.  Similarly, in this case, the Complainant’s dismissal was entirely disproportionate to the gravity of the situation and there was no consideration whatsoever for the effect of dismissal on the Complainant or alternative sanctions available.

It is submitted that in this case, in addition or in the alternative to there being no substantial grounds justifying the dismissal, fair and proper procedures were not followed before the dismissal took place.  

The purported investigation was entirely inadequate and flawed.  The allegations against the Complainant were not adequately identified.   It appears that Mr X was interviewed, but no note of that meeting was provided to the Complainant, in order to afford him the right to reply to statements that may have been adverse to him, thereby denying him of his right to reply.  No effort was made to interview witnesses who may have supported the Complainant. There was no more than an attempt to pay lip service to the observance of procedures, to attempt to justify an outcome that had already been determined.  It is submitted that in this case, in addition or in the alternative to there being no substantial grounds justifying the dismissal, fair and proper procedures were not followed before the dismissal took place.  

In addition to the failure to follow fair procedures, the Complainant was unceremoniously dismissed, without notice or payment in lieu of notice, five days before Christmas.  It is submitted that the disproportionality, the failure to consider any alternative sanctions, lack of fair procedures and the unreasonable conduct of the Respondent, take the dismissal of the Complainant outside any band of reasonable responses and that the dismissal of the Complainant was clearly an unfair dismissal within the meaning of the Unfair Dismissals Act.

The complainant’s dismissal has had a devastating impact on him and he seeks reinstatement as the only appropriate remedy in the circumstances.

Claim under the Minimum Notice and Terms of Employment Act 1973

The Complainant was summarily dismissed on 19 December 2024, without notice or payment in lieu of notice.  It is submitted that there was no justification for summary dismissal.

 Section 4 of the Act provides:

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) …

(b) ….

(c) ….

(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,

The Complainant had over ten years’ service and it is submitted is therefore entitled to a payment that reflects statutory notice pay of six weeks remuneration.

The Complainant did not receive a statement of terms of employment in compliance with the Act, during his employment with the Respondent.  The Complainant seeks compensation of four weeks remuneration, in accordance with Section 7 of the Act.

The complainant was employed by the respondent as a Maintenance Coordinator until his dismissal on the 19th of December, 2024. The plaintiff was dismissed from his employment as a result of gross misconduct on his part. In particular, he was dismissed on foot of admitted conduct as follows;

a)      ordering a drill type product from a company supplier on behalf of the company when he knew it was not for the company, but for another employee, breaching internal protocols and procedures and exposing the company to revenue fraud.

b)      arranging the sale and supply of kegs to an unlicensed third party, thereby exposing the company to breaches of the licence licensing laws.

On 11th December, the complainant came to the office of Ms Claire Hegarty, Company Accountant and on forth of that conversation, she was concerned regarding cash that the complainant wanted to give her for a drill that was not purchased for the company.

Miss Haggerty asked the complainant to email her the invoice of that drill, which he did. Miss Haggerty then contacted John Doherty, Financial Controller, and Mark Mulligan as she was concerned regarding the transaction. John Dougherty then briefly met with the complainant to seek some clarity regarding what appeared to be the company's supplier account being used to make a personal cash transaction on foot of admissions made.

The complainant was suspended with pay on the 13th of December. The complainant was asked to meet with Steven Neeson, Head of Operations, and Greg Quinn, HR, for the purpose of investigating the matter.

The complainant made admissions regarding the purchase and also made admissions regarding the sale and supply of kegs to third parties. By email dated 17 to December 2024 the complainant was invited to a disciplinary hearing. The complainant acknowledged receipt of the copy of his handbook. The letter advised the complainant of the nature of the allegations made against him, his right to be accompanied and the nature of the disciplinary action that could be taken against him.

The complainant attended the meeting on the 19th December. On foot of that meeting. A decision was made to dismiss the complainant. By email on the 20th December the complainant was informed of his dismissal and of his right to appeal. The complainant did not appeal the decision. The company accepts that the burden of proof is on the employer to show substantial grounds justifying the dismissal.

The company submits that the complainant was dismissed on the grounds of gross misconduct. The employee handbook, a copy of which was given to the complainant during the course of his employment, specifically identifies that the company will deem gross misconduct, and one of the categories listed is theft, dishonesty, and falsification of records.

The company is entitled to dismiss the complainant on the grounds of conduct. Further dishonesty and breach of trust and foot of dishonesty are recognized reasons for dismissal on the conduct and fair procedures. The complainant alleges that fair procedures were not applied in the disciplinary process.

The company became aware of a potential fraud by the complainant when he turned up with cash to the company accountant's office. The complainant did not put a purchase order on the drill order. He did not put the purchase through the books. He knew that the external company was being paid. He knew that the invoice was in the company's name but not bought for the company. This represents dishonesty, and potential fraud. The complainant was interviewed and given an opportunity to explain his misconduct but provided no valid explanation.

The complainant also admitted the sale and supply of kegs to unlicensed third parties. At the disciplinary meeting, the complainant was given an opportunity to comment on the allegations. On foot of his responses the company took action to dismiss the complainant. The complainant never denied his dishonest conduct, which exposed the company to breach of the licensing laws and potential fraudulent returns to revenue.

The complainant is not entitled to minimum notice where he was dismissed for gross misconduct.

There is no formal contract of employment but all the relevant terms and conditions are included in the Company Handbook.

CA-00070948-001 – Unfair Dismissal

Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. Included in this deliberation will be whether dismissal was a proportionate response to the allegation of misconduct.

There were two issues of concern to the Respondent;

Firstly, the issue of purchasing the tool.  The complainant’s evidence in relation to the purchase of the tools and his discussion with her regarding this purchase was largely confirmed by Ms Hegarty.  She acknowledged that Mr X had at one stage been in procurement. It was on the advice of Mr X that the complainant did not put a purchase order number when ordering the tool ie. That this would cause the payment to be flagged when the invoice arrived and payment made by the complainant rather than the company.   The complainant in his evidence stated that he had understood always that Mr X had the authority in dealing with these matters. The respondent clarified that Mr X did not have such authority however, I accept that the complainant misunderstood Mr X’s role. 

Secondly, in relation to the kegs, the complainant’s evidence was that he purchased those though Mr X by cash payment in a similar way to the common historical practice in the respondent’s organisation in which orange juice was purchased by employees.  It is also of note that the complainant paid the full cost of the kegs at the time and did not profit in any way by these purchases. 

The complainant alleges that the investigation and disciplinary processes were unfair.   The first time the complainant heard about the issue of the kegs was during the investigation meeting. Mr Neeson, Head of Operations, conducted the investigation, assisted by the HR Advisor, Mr Greg Quinn.  He confirmed that the issue of the kegs was raised at the meeting with the complainant despite the complainant not having advance notice of this issue.  The reason for this was because Mr Neeson only became aware of this issue, following a meeting with Mr X, on the morning of the meeting with the complainant.  No letter was sent to the complainant detailing what was to be investigated in advance of that meeting.  No record of the early meeting with Mr X, when these matters were discussed, was made available to the complainant.

The complainant could not be expected to adequately address this issue without advance knowledge to enable him to present his side of the case. While there were minutes of the investigatory meeting no report was produced. In evidence Mr Neeson, who conducted the investigation said they concluded it was gross misconduct and that it should go to a disciplinary hearing. Such a conclusion goes beyond what is the normal expectation in an investigation.  There was no clear water between the investigation process and the disciplinary process and therefore, I conclude that they were part of the same process.  Accordingly, the failure to inform the complainant in writing of the issues to be comprehended by the process, including the issue of the kegs, was fatal to the fairness of the procedure. 

I therefore, conclude that there were deficiencies in the investigation and disciplinary processes which render the decision to dismiss unfair.

The question of the ‘reasonableness’ of the decision of an employer to dismiss was considered in Bank of Ireland v Reilly[2015] IEHC 241, where Noonan J. noted that s6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However, “that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that 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”

The test for reasonableness was set out in Noritake(Irl)Ltd v Kenna(UD 88/1983) as follows:

1) Did the company believe that the employee misconducted himself as alleged?

2) if so, did the company have reasonable grounds to sustain that belief?

3) if so, was the penalty of dismissal proportionate to the alleged misconduct?

From the evidence given at the hearing it is clear that the respondent believed that the complainant had misconducted himself and that they had some grounds supporting this belief. At the hearing the respondent referenced dishonesty and theft.  In its submission to the hearing the respondent also referenced an extract from their procedures which referenced gross misconduct as including   ‘the categories of theft, dishonesty, and falsification of records’. I note that theft was never put to the complainant at the investigation or at the disciplinary hearing.  Based on the evidence at the hearing I see nothing that would support the allegation of theft, or the allegation of dishonesty or the allegation of falsification of records.  The complainant proffered payment in full at the time of purchase for the goods that he was purchasing  therefore there cannot be theft or dishonest behaviour.  Failure to follow a procedure is not the same as falsification of records.  The person who took the decision to dismiss was not present at the hearing and did not give evidence as to why the decision was to dismiss and not some lesser penalty.

In evidence the complainant stated that Mr Smyth told him that it was “out of my hands” referring to the inquiry into potential misconduct.  It is understandable that the complainant would take the view therefore that the matter was effectively a ‘fait accompli’ and that it was pointless appealing the matter.

It is clear from the evidence of the complainant that the decision to dismiss, with the implied dishonesty, had a profound effect on him.  This is also evidenced by the fact that he is seeking reinstatement in order to clear his name. To take someone’s job, on the grounds of gross misconduct, alleging fraud and dishonesty is a major issue.  Nothing in the evidence presented at the hearing suggests that there was any attempt at fraud or dishonesty by the complainant and that, such failures as there were, related to a lack of understanding in relation to procedures of the respondent.  I therefore conclude that the decision to dismiss on the grounds of gross misconduct falls outside of the boundaries of a reasonable decision by the respondent.

There were procedural flaws which also were sufficient to render the dismissal unfair.  However, to base any decision on such flaws can have the unintended consequences of inferring that the complainant, but for flaws in the process, would have been fairly dismissed.  That is not my intention and, to clarify any such potential inference, I do not think the complainant’s transgressions were substantial to the extent justifying dismissal.  His actions involving the purchasing of the tool and the kegs were done in a transparent manner.  At most these actions could be construed as naïve but certainly not dishonest.

The complainant was unfairly dismissed. He was out of work for 7 weeks before gaining a new position on a similar salary.  In light of the length of time that has passed since the dismissal I do not believe that reinstatement is appropriate.  I therefore award him compensation in respect of his losses equivalent to 7 weeks’ pay which is €6,562.

CA-00070948-002  Minimum Notice

Section 4 of the Minimum Notice and Terms of Employment Act 1973 details the minimum notice an employee is entitled to related to years served.  While an employer may not pay such notice based on a dismissal related to Gross Misconduct,  as I have determined that dismissal on these grounds was unfair in this instance, it follows that the complainant was entitled to be paid statutory notice and the Act has been contravened.  Based on his service of 10 years the amount due is 6 weeks’ pay which I quantify as €5,625.

CA-00070948-003 Terms of Employment

The respondent has sought to rely on the presence of an Employee Handbook as meeting  its obligations under the Act.  I note that there is reference in the Handbook to employees being given a contract  and therefore it clearly was never the intention that the Handbook should substitute for the requirement to give and individualised set of terms and conditions to each employee.  The complaint is therefore well-founded and I order the respondent to pay the complainant compensation in the sum of €1,875 the equivalent of 2 weeks’ pay.

CA-00070948-001   The complainant was unfairly dismissed and I order the respondent to pay him the sum of €6,552 in compensation.

CA-00070948-002 The Act was contravened and I order the respondent to pay the complainant the sum of €5,625 in respect of statutory notice due.

CA-00070948-003 The complaint is well-founded and I order the respondent to pay the complainant the sum of €1,875 in compensation.

Unfair dismissal, disproportionate penalty, minimum notice, terms and conditions