Complainant

Respondent

Parties

Stephen  Loughran

Almac Pharma Services Ireland Limited

Representatives

Self- Represented

Michelle McGinley, Employers Federation

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-00072145-001

05/06/2025

The Complainant commenced employment with the Respondent on 1 December 2023 as a Production Operator at its Dundalk facility having previously been engaged for several years as an agency worker. He was summarily dismissed on 7 April 2025 on grounds of gross misconduct arising from a physical altercation with a third-party food delivery driver on the Respondent's premises on the evening of 7 March 2025, during the Complainant's scheduled break.

While the Complainant's complaint form indicated compensation as the redress sought, he confirmed in evidence that he wished to return to his employment, and the question of re-instatement and re-engagement was accordingly explored with both parties at the hearing.

The Complainant stated that he was on a 2pm to 10pm shift on 7 March 2025. A colleague, M, had organised a food delivery for a group of approximately ten employees the day before. When the delivery driver arrived some 40 minutes late, the Complainant's break had already ended, and he and his colleagues tried to explain to the driver that they could no longer accept the food. He stated that the driver became aggressive, repeatedly saying it was not his fault and that the food was not late.

The Complainant accepted that, as he turned to walk away, he called the driver a "cunt", and that when the driver asked him to repeat what he had said, he did so. He stated that the driver then punched him once, without further warning, and that within a momentary interval, he grappled with the driver, holding his arm and punching him, before the altercation ended. He gave evidence that he was acting in self-defence throughout, and that once the physical exchange ended, he approached the driver's car to ask him to remain at the scene because he had called the Gardaí, but that the driver drove off regardless.

The Complainant asserted that the investigation was biased, that the finding that his response to the driver's punch was disproportionate was incorrect, and that the process by which he was dismissed was unfair. He gave evidence that he wished to return to his former role, that he self-reported the incident, and that he was remorseful at the disciplinary hearing.

His evidence was that any day-to-day interaction between himself and Mr Canavan would be minimal or non-existent, given that he works on the factory floor while Mr Canavan is the most senior manager on site, and that the Respondent's Dundalk operation employs approximately 100 people, such that he would readily be able to fit back into the workforce. He also gave evidence that, as of the date of this hearing, some fifteen months after his dismissal, he remained unemployed; that he had been forced to leave Dundalk because he could no longer afford to live there; and that he had returned to live at his mother's home in a small village, where his job search had been confined to a very limited geographical area both because of the location itself and because he does not drive. Notwithstanding this, he confirmed that he remained willing to return to his former role in Dundalk.

The Respondent's position was that the Complainant inserted himself into an exchange that did not concern him, escalated matters by directing an offensive term at the driver on two occasions, and, having been struck once, responded with a number of punches while the driver was retreating and attempting to protect himself. It was the Respondent's case that this went well beyond self-defence and amounted to gross misconduct warranting summary dismissal.

The investigation was conducted by Mr Gerald Hudson, Production Supervisor, supported by HR. Investigation meetings were held with M on 12 March 2025, with T and Th on 21 March 2025, and with the Complainant on 25 March 2025. The Respondent stated that the Complainant was furnished with the notes of the earlier witness meetings, and given an opportunity to view the CCTV footage, at that 25 March meeting. The matter was referred to a disciplinary hearing chaired by Mr Canavan, with Ms Sarah Currie in attendance, which concluded in the Complainant's summary dismissal on 7 April 2025. His appeal was heard by Ms Wilkin, with Ms Blacker in attendance, and the original decision was upheld on 30 April 2025.

When the question of the Complainant's return to employment was canvassed with him at this hearing, Mr Canavan gave evidence that he strongly objected to it and that he personally could not trust him.

The Law

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 Act provides, so far as is relevant, that the dismissal of an employee shall not be deemed to be an unfair dismissal if it results wholly or mainly from the conduct of the employee.

Section 6(6) provides that it is for the employer to show that the dismissal resulted wholly or mainly from a ground specified in subsection (4), or that there were other substantial grounds justifying it.

Section 6(7) provides that, in determining whether a dismissal is unfair, regard may be had, where the Adjudication Officer considers it appropriate, to the reasonableness of the employer's conduct in relation to the dismissal, and to the extent of the employer's compliance with fair procedure.

Substantive Fairness

It is well established that the role of the Adjudication Officer is to assess the reasonableness of the Respondent's decision in the circumstances, and not to establish the guilt or innocence of the Complainant, as set out by the Employment Appeals Tribunal in Looney and Co Ltd v Looney UD 843/1984:

"It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer's position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer's actions and decisions are to be judged."

I must therefore consider whether it was reasonable of the Respondent to dismiss the Complainant on the basis that his reaction to being struck by the driver went beyond self-defence.

For the avoidance of doubt, my role is not to make a finding as to whether the Complainant’s actions constituted lawful self-defence in a criminal or civil law sense. My focus remains strictly on the adequacy of the Respondent's investigation and decision-making process.

Having reviewed the CCTV footage on a number of occasions, I noted that the entire physical exchange between the Complainant and the driver — from the moment he was struck to the very end of the altercation — lasted approximately six seconds. The sequence shown is as follows: the driver strikes the Complainant first; there is a momentary interval within what remains a single continuous exchange; the Complainant then engages, and there is arm-holding, pushing, and a couple of punches thrown by the Complainant, before the altercation ends. This was not raised by either party at the hearing; I noted it myself only on my own review of the footage. There is nothing in the minutes of the disciplinary hearing to suggest that this very short overall timeframe, or the limited sequence of actions it in fact contains, was weighed in the Respondent's assessment of proportionality, and I am of the view that a proportionality analysis which catalogues these actions without regard to the fact that the entire sequence occupied a matter of seconds overstates the deliberateness of what was, on any view, a very rapid event.

I also note that the disciplinary panel's conclusion that the Complainant “could have walked away” after the driver struck him appears to rest on the view that, because the driver briefly backed away after punching him, the Complainant had an opportunity to disengage from the confrontation. Having reviewed the footage, I do not consider that point can be divorced from the very short timeframe within which the entire incident unfolded. The driver's movement away was not a separate event occurring after any clear pause in the confrontation, but rather part of what remained a single, continuous and fast-moving exchange lasting approximately six seconds from beginning to end. Treating that brief movement as a meaningful opportunity to disengage requires a level of reflection and decision-making that is not realistically available to someone who has just been punched and is still in the middle of an unfolding physical altercation. In that regard, I find persuasive the reasoning of the Adjudication Officer in A Climber v A Tree Management Company (ADJ-00019437), where it was observed that expecting an employee to disengage in such circumstances "requires a degree of passivity not generally available in the heat of the moment" and "a level of coolness and rationality not available to someone on the receiving end of a punch." While every case turns on its own facts, the same principle seems relevant here. Given that the driver's backing away occurred only momentarily and within a six-second exchange, I do not consider it reasonable to treat that as a clear opportunity for the Complainant to stop, reassess the situation, and walk away.

In addition, I noted that M told the Investigator that the altercation itself lasted between ten and fifteen seconds, a discrepancy on which he was never challenged, either during the investigation or subsequently.

Considering all of the foregoing points, I am satisfied that the Respondent’s conclusion that the Complainant’s actions went beyond self-defence was not one a reasonable employer could reasonably have reached on the evidence before it.

The disciplinary and appeal outcome letters also relied, in justifying the dismissal, on two further elements of the allegation: that the physical altercation occurred following the Complainant's having called the driver "a cunt," and that the altercation occurred outside on company property where it could have been witnessed by visitors, passers-by, and other employees, such that this conduct could have a detrimental impact on the Respondent's reputation. I do not doubt that the Complainant's language was grossly offensive, and I address elsewhere in this decision the seriousness with which I regard it. However, I am not satisfied that this element, whether taken alone or together with a physical response which I have found the Respondent could not reasonably have characterised as going beyond self-defence, could support a reasonable finding of gross misconduct warranting summary dismissal.

I reach that view for a number of reasons. There was no evidence before the Respondent that the Complainant had any prior disciplinary record, whether for language, conduct, or otherwise. The comment was directed at a third party who did not work for the Respondent, rather than at a colleague with whom the Complainant would have an ongoing working relationship. There was no evidence of any repetition of similar language by the Complainant, either before or after this incident. Nor was there any evidence that the Respondent had, in the past, treated a single instance of such language, uttered by an employee towards a third party in the course of a heated exchange, as gross misconduct warranting dismissal; no comparator or established practice to that effect was put before me. Finally, there was no evidence of any disruption to the Respondent's operations following the incident, whether in the form of continuing conflict, complaint, or effect on the workplace. Taken together, these matters lead me to conclude that a single instance of offensive language, in these particular circumstances, is not the kind of conduct that would ordinarily be regarded by a reasonable employer as placing the employment relationship beyond repair.

As for the suggestion that the incident could have been witnessed by visitors, passers-by, or other employees, with a consequent risk to the Respondent's reputation, I note that this was expressed in entirely speculative terms — that the altercation "could have been witnessed" and "could have a detrimental impact" — rather than as a finding that it was in fact witnessed by any such person, or that any actual reputational harm occurred. In those circumstances, I do not consider that this aspect of the allegation, which was based on speculation rather than established fact, could reasonably have counted for very much in deciding whether the conduct amounted to gross misconduct.

I also noted that, while Mr Canavan did not accept that the Complainant had acted in self-defence, the minutes of the disciplinary hearing show that Mr Canavan put to the Complainant that the CCTV footage appeared to show him stepping towards the driver again after the physical altercation had ended, that M then approached and walked him back towards the path, and that the footage then showed him going back towards the driver a second time; Mr Canavan asked him why. The Complainant's answer was that he did not want the driver fleeing the scene because he was calling the Gardaí. Mr Canavan appears to have accepted this explanation, since he makes no reference to it whatsoever, whether adversely or otherwise, in the disciplinary outcome letter, and there was no other evidence presented during either the investigation or the disciplinary hearing to challenge what the Complainant told him.

I am not satisfied, for the reasons set out above, that the finding of gross misconduct — whether arising from the Complainant's reaction to being struck, his use of offensive language towards the driver, or the speculative risk to the Respondent's reputation relied upon in the disciplinary and appeal outcome letters — was one that a reasonable employer would have reached on the evidence before it, and I find that the dismissal was substantively unfair.

Procedural Fairness

As well as making a finding on the substantive fairness of the dismissal, I must also examine whether it was procedurally fair.

I firstly note that Mr Hudson gave evidence that, on the evening of 7 March 2025, he sent Mr Canavan an email giving him an overview of the Complainant's version of the incident, following the Complainant's self-report of it. Mr Canavan's own evidence was that he personally sought access to the CCTV footage as early as 10 March 2025, several days before any investigator had been appointed. It is unclear from the evidence precisely when Mr Canavan formally instructed Mr Hudson to investigate the matter. He did not pass the footage to the HR department until 18 March 2025, having by then reviewed it himself for over a week, and he went on to review it on several further occasions before chairing the disciplinary hearing himself and making the decision to dismiss.

Mr Canavan's evidence was that he had to obtain the footage from Head Office and that, as Head of the Dundalk site, he was the only person who could do so. I accept that this may well explain why it was Mr Canavan who first obtained the footage. What I cannot understand, however, is why someone other than Mr Canavan was not then appointed to chair the disciplinary hearing, given that he had, by that point, already been personally handling the central evidence in the case for several weeks. I find it difficult to identify what role the Respondent's HR function played in this process at all, given that the initial evidence-gathering, the decision to investigate, and the ultimate disciplinary decision were all directed by the same individual, with HR appearing only after the event. This concentration of functions in one person is, in my view, a significant departure from the degree of separation that fair procedures require between those who set an investigation in motion and those who ultimately decide its outcome.

The Respondent, in its closing submissions, relied on Kelleher v An Post [2013] IEHC 328 for the proposition that workplace investigations do not require complete separation between all participants at every stage. Having read that judgment, I accept that Peart J did indeed hold that an investigator and an eventual decision-maker need not be, in his words, "hermetically sealed" from one another, and that some degree of contact between them is often inevitable and does not, of itself, taint a process. I do not consider, however, that this assists the Respondent, because the facts of Kelleher are readily distinguishable from those of the present case. In Kelleher, the investigator and the ultimate decision-maker were two separate individuals who had some form of contact and communication during the process; here, by contrast, Mr Canavan was not merely in contact with the investigation but was, on my findings, its author, its evidence-gatherer, its instructing party, and its ultimate decision-maker, all in one. The degree of overlap the Respondent asks me to treat as unremarkable in this case goes considerably further than anything considered or condoned in Kelleher.

The Respondent also relied on Kelly v Minister for Agriculture, Fisheries and Food [2012] IEHC 558 for the proposition, drawn from the High Court judgment of Hedigan J, that the full range of fair procedures does not apply at a preliminary, fact-gathering investigative stage. I have gone further than the High Court judgment cited by the Respondent and considered the ultimate outcome of that litigation in the Supreme Court, at [2021] IESC 28. Having done so, I do not consider that this authority assists the Respondent, and if anything I consider it to point in the opposite direction.

While the Supreme Court did not disturb the finding that Mr Kelly had not been denied fair procedures at the investigative stage, it nonetheless quashed his dismissal entirely, on the ground of objective bias arising from what Dunne J described as the "twin involvement" of a Minister who had, at an early stage, privately met the investigator and expressed strong views about the applicant, and who later participated in the Cabinet decision to dismiss him — notwithstanding that there was no evidence whatsoever of actual bias on her part. If a single meeting at the investigative stage, followed by later participation as one voice among many in a collective decision, was sufficient to found a reasonable apprehension of bias in that case, I consider that the degree of overlap present here — where one individual personally sourced the central evidence, initiated the investigation, and single-handedly made the decision to dismiss — raises the same concern. I therefore reject the Respondent's reliance on this line of authority, and consider that a full reading of the Supreme Court decision in fact reinforces, rather than undermines, my findings on this point.

The Respondent additionally relied on O'Sullivan v Law Society of Ireland [2009] IEHC 632, O'Sullivan v Mercy Hospital Cork, E.G. v The Society of Actuaries in Ireland [2017] IEHC 392 and N.M. v Limerick and Clare Education and Training Board [2017] IEHC 588, each supporting the same general proposition addressed above in relation to Kelly and Kelleher — namely, that the full range of natural justice rights does not automatically arise at a preliminary, fact-finding stage of a tiered process. I accept that proposition. It does not, however, assist the Respondent in the instant case, since my finding of procedural unfairness does not rest on any deficiency in the investigative stage considered in isolation, but on the concentration of functions across the investigative and disciplinary stages, the expansion of the allegations, and the defects at the disciplinary and appeal stages set out elsewhere in this decision.

I also noted that the Complainant returned to work as normal on 14 March 2025 and continued to do so without incident until 18 March 2025, when Ms Luisa Forde decided to suspend him, on foot of a telephone call from Mr Canavan that same day asking her to hold a meeting to consider suspension. No satisfactory explanation was given as to why the question of suspension arose at that point, over a week after the incident and after the Complainant had already returned to work without difficulty. Nor can I understand why it was Mr Canavan, rather than someone from the HR department, who approached Ms Forde to have her consider suspension. This speaks, once again, to the very passive role played by HR throughout this entire process, where its function appears to have been little more than that of note-taker at the various meetings, rather than that of a function directing or safeguarding the process.

Mr Hudson did not have access to the CCTV footage when he met with the first witness, M, on 12 March 2025, since, as noted above, the footage was not passed to HR until 18 March 2025, and he did not subsequently return to M to test his account against the footage once it became available. Separately, Mr Hudson's own evidence was that he relied on his viewing of the footage in deciding to refer the matter to a disciplinary hearing, but what he saw and concluded from it was never put to the Complainant during the investigation meeting for his response.

I accept that the Complainant was furnished with the minutes of Mr Hudson's meetings with the other witnesses in advance of his own meeting on 25 March 2025. However, he was not challenged on, or asked to respond to, the substance of those minutes during that meeting. I noted that the Complainant identified, during his own meeting, a significant discrepancy between his account and that of M, and that M was never re-interviewed in light of it; Mr Hudson could not explain why not. More generally, I could find no evidence that any of the three witnesses interviewed was ever re-interviewed in respect of any inconsistency between their own account, the Complainant's account, or the CCTV footage, and I regard this as a significant shortcoming in the investigation.

I further noted that the allegation put to the Complainant was changed and expanded between the investigation and disciplinary stages. The suspension letter of 18 March 2025 described the matter under investigation in the following terms: "the company is conducting an investigation into an incident that is alleged to have occurred on 7 March 2025. It is reported that this incident involved a physically violent altercation between yourself and a third party." The investigation invite letter of 21 March 2025 was framed in materially identical terms, stating that the purpose of the meeting was "to discuss an allegation that an incident occurred on 7 March 2025 which involved a physically violent altercation between yourself and a third party." Neither letter referred to anything beyond the physical altercation itself. The disciplinary invite letter, however, expanded the allegation considerably, stating that the hearing was to explore an allegation that: "You were involved a physcial [sic] violent altercation with a third party on the evening of 7 March 2025at at our company premises. The physical altercation occurred following a comment made by you to the third party, where you call them 'a cunt'. This altercation occurred outside on company property and could have been witnessed by visitors, passerby's [sic] and other employees and this violent and aggressive behaviour could have a detrimental impact on the company's reputation." This additional material — the specific verbal trigger, and the reputational dimension arising from where the altercation was said to have taken place — had not featured in either the suspension letter or the investigation invite, and was never itself the subject of a discrete investigation.

Mr Canavan's evidence at this hearing was that the allegation changed because new evidence had come to light during the investigation. I do not accept this explanation. As to the language used by the Complainant, this was not new evidence at all: the Complainant had already admitted to Mr Hudson on the evening of the incident, well before the investigation began, that he had called the driver "a cunt." The same detail was, moreover, contained in Mr Hudson's own email to Mr Canavan that same night, sent shortly after the Complainant had self-reported the incident and was therefore omitted from the investigation invitation that Mr Hudson was responsible for as a matter of choice and not a gap later filled by new information gathered during the investigation, as Mr Canavan alleged.   

As to the allegation that the altercation could have been witnessed by passers-by, it was Mr Hudson himself who raised this with the Complainant during the investigation meeting, asking him whether he was aware that the incident could have been witnessed by passers-by; the Complainant had not raised this possibility of his own accord. This was not new evidence volunteered by the Complainant or independently discovered by the investigation, but a line of inquiry introduced by the investigator himself, the answer to which was then relied upon to expand the allegations against the Complainant.

I also noted that a particular argument was repeated throughout the hearing by the Respondent's representative, as well as by Mr Canavan and Ms Wilkin in evidence: that the investigation meeting was merely informal and non-binding, that the true fact-finding and adjudicative process occurred at the disciplinary hearing, and that by then the Complainant had advance notice of the allegations and a further opportunity to view the CCTV footage, which Mr Canavan replayed during the hearing. I do not accept that this cures the defects already identified. Advance notice of allegations is not the same as those allegations having been investigated. Having reviewed the disciplinary hearing minutes, I am satisfied that Mr Canavan did not simply determine whether the allegations established by the investigation were substantiated; rather, in revisiting the CCTV footage and underlying facts, he conducted what amounted, in substance, to a fresh investigation of the incident. To his credit, unlike Mr Hudson, he did put to the Complainant aspects of the footage that differed from his account. In effectively revisiting the matter at disciplinary stage, however, he did not speak to any of the three witnesses interviewed during the earlier investigation, nor is it clear whether he accepted M's evidence that the altercation lasted between ten and fifteen seconds or the CCTV evidence suggesting it lasted no more than six seconds. The expanded allegations were likewise never tested against the evidence those witnesses had already provided. What I find difficult to understand is why M's account appears to have been accepted without further examination, while the Complainant's account was subjected to renewed scrutiny. If the disciplinary panel considered it necessary to test the evidence gathered during the investigation, that scrutiny ought to have been applied consistently.

Even where a genuinely new concern emerges during an investigation, I consider that concern should ordinarily be explored with the witnesses available to the employer, rather than being raised for the first time with the employee in a disciplinary invitation. This conclusion is reinforced by the Labour Court's approach in RCI Call Centre (Ireland) Limited v Ibrahim Salah UDD202, where the introduction of additional allegations mid-process, coupled with the fact that the affected customers had made no complaint, led the Court to question whether there was an impetus to build as strong a case as possible against the employee. The parallel here is evident: the delivery driver made no complaint and the matter came to light only because the Complainant self-reported it.

I also note that the Respondent never sought to contact the driver. The Respondent stated in their written submissions that the Complainant's admissions and the CCTV footage rendered this unnecessary. While those sources may assist in establishing what physically occurred, they cannot address the driver's account of what prompted the exchange, his reasons for leaving his vehicle, or matters concerning the visibility of the incident and its potential impact on the Respondent's reputation, all of which were later relied upon in support of the dismissal. Those were matters on which only the driver could have spoken directly.

Ultimately, the Respondent's position gives rise to a more fundamental difficulty. If the real fact-finding exercise occurred at the disciplinary hearing, I am at a loss to understand what purpose the earlier investigation served. As set out above, Mr Canavan did not rely upon the investigation as establishing a factual foundation for his decision but instead effectively re-examined the matter himself. That approach did not remedy the deficiencies in the original investigation. Instead, it resulted in the disciplinary hearing assuming an investigative function, with the same individual both re-examining the evidence and determining the outcome.

Turning to the appeal, I was concerned by an intervention made by Ms Blacker, the Group Head of HR, who attended in the capacity of note-taker. During the appeal hearing, the Complainant suggested that the disciplinary panel had been biased against him, and referred to a separate issue he said he had raised in the past which had, in his words, been swept under the carpet; he said he had been asked to leave the matter and had agreed to do so. Ms Wilkin asked him whether that earlier matter had been fully investigated, and the Complainant replied that he had not been allowed to go to HR about it. It was at this point that Ms Blacker intervened, the notes of the meeting recording her as asking: "Bring back to this appeal, related to this?", to which the Complainant replied that it was "not related".

I have two concerns about this exchange. The first is substantive: the Complainant was in the course of raising an allegation of bias against the very body whose decision he was appealing, and, in my view, he ought to have been permitted to set out that allegation in full before being asked to bring the discussion back to the matter at hand. Cutting a complainant off mid-way through articulating a bias complaint at his own appeal, whatever its ultimate relevance, risks conveying that such concerns are not genuinely welcome to be heard. The second is procedural: even if it was appropriate at some point to ask the Complainant to confine himself to matters relevant to the appeal, that was a decision for Ms Wilkin, as the person chairing the hearing, to make and to communicate. It was not a decision for Ms Blacker to make in her capacity as note-taker. This intervention, whatever its motivation, is itself difficult to reconcile with a role said to be confined to note-taking, and a note-taker who steps in to redirect the discussion on a point going to the fairness and independence of the process as a whole compromises the perceived and actual independence of that function.

I also find it extraordinary that the note-taking function at earlier stages of this process had been discharged by considerably more junior staff, and it is not clear to me why the seniority of HR representation should have increased so markedly at precisely the point where the greatest independence from earlier stages of the process was required. This is the first time, in my experience adjudicating matters of this kind, that I have encountered a Head of HR filling the role of note-taker at any stage of a disciplinary process in respect of a modestly paid employee.

I further find that Ms Wilkin, in her appeal findings, stated that she agreed with a finding of the disciplinary panel that the Complainant had pursued the driver around his vehicle. No such finding had, in fact, been made by the disciplinary panel at all; if anything, the evidence suggests the opposite, namely that Mr Canavan explored this precise point at the disciplinary hearing and was satisfied with the Complainant’s answer to it. I am at a loss to understand how Ms Wilkin could purport to agree with a finding that was never made. In any event, I do not consider that the wider evidence gathered during the investigation would have supported such a finding had it properly been made, given the differing accounts of M and TH as to the Complainant’s movements after the altercation ended, neither of which was ever tested with the witnesses concerned. Ms Wilkin's evidence as to who had appointed her to conduct the appeal was, in addition, notably vague, and she could not clearly recall who had done so.

Standing back from these individual matters, it is my view that Mr Canavan was, in substance, the architect of this process from beginning to end: he was notified of the incident on the night it happened, he personally sourced the central evidence before an investigator was appointed, he set the investigation in motion, he appointed the person to suspend the Complainant partway through that investigation, he chaired the disciplinary hearing himself, he stood over the expanded allegations put to the Complainant at the disciplinary stage, and he went on to re-investigate elements of the matter during that hearing and did not challenge some of the evidence gathered in the original investigation. That Mr Canavan repeatedly emphasised, in his own evidence, that he had approached this process independently does not alter this conclusion; procedural fairness is established by the objective structure of a process, not by a decision-maker’s subjective view of it. Nor is it altered by the degree to which the CCTV footage was invoked at every stage of this process, from Mr Canavan's early personal efforts to secure it through to its continued prominence on appeal, which reinforces rather than dispels the concern that he, rather than any independent function, was directing matters throughout. Throughout all of this, the Respondent's HR function appears to have played a largely passive role, its involvement amounting, in substance, to attendance and note-taking at the various meetings rather than to directing, safeguarding, or exercising any independent check on the process. In my experience, a central purpose of HR involvement in a disciplinary process is to guard against precisely the kind of conflation of roles I have identified above, and I am not satisfied that this purpose was served in this case.

Of the matters identified above, some are better regarded as imperfections that reinforce, rather than independently establish, the more serious defects in this process. Five matters, in particular, seem to me to have actually rendered this process unfair: the concentration of the investigative, evidence-gathering, and disciplinary functions in the person of Mr Canavan; the expansion of the allegations against the Complainant after the investigation had concluded; the failure to investigate or resolve the inconsistencies identified between the Complainant's account and that of M; the effective re-investigation of the matter by Mr Canavan during the disciplinary hearing itself, applied selectively as between witnesses; and the defects in the appeal process, in particular the misattribution to the disciplinary panel of a finding it had never made. While not every procedural shortcoming identified above would, viewed in isolation, necessarily render the dismissal unfair, their cumulative effect deprived the Complainant of the independent and even-handed disciplinary process to which he was entitled.

The Respondent, in its closing submissions, relied on a body of cases — including Byrne v Allied Transport Ltd UD 11/1979, Taylor v Thiel Computer Products UD 246/1990, Mooney v Foy UD 657/1989, Accenture Ltd v Kowouvi UDD254 and Shortt v Royal Liver Assurance Ltd [2008] IEHC 332 — for the proposition that procedural imperfection does not automatically render a dismissal unfair, and that the relevant question is whether any defect was so significant, or so prejudicial, as to imperil the fairness of the process as a whole. I accept that proposition as correctly stating the law. It is, however, precisely the test I have applied. The defects I have identified above are not, individually or in combination, minor or technical. The concentration of the investigative, evidence-gathering and disciplinary functions in a single individual; the expansion of the allegations after the investigation had concluded, on a basis I have found to be unsustainable; the failure to resolve a material inconsistency between the Complainant's account and that of M; the selective re-investigation of the evidence at the disciplinary stage; and the defects in the appeal process, including the misattribution to the disciplinary panel of a finding it never made — these go to the independence, even-handedness and factual integrity of the process itself, rather than to matters of form. I therefore distinguish Kowouvi, where the imperfections identified (a failure to clarify the relevance of CCTV footage and to interview certain witnesses) were found not to be materially prejudicial, and Shortt, where the process was found not to have imperilled the fairness of the outcome. The defects here, considered cumulatively, are of a different order, and I am satisfied they meet the higher threshold those authorities themselves describe.

The Respondent further relied on Meath County Council v Creighton UD 11/1977 and on Polkey v A.E. Dayton Services Ltd [1987] UKHL 8, submitting that any procedural omission is justified where the employer establishes that, despite the omission, it acted reasonably in deciding to dismiss, and that Mr Canavan's evidence — that he would have dismissed the Complainant on the first allegation alone — demonstrates this. I do not accept that this assists the Respondent. The premise of that line of authority is that the substantive decision to dismiss was itself a reasonable one, notwithstanding a procedural shortfall. I have found, for the reasons set out earlier in this decision, that the substantive decision to dismiss was not one open to a reasonable employer on the evidence before it. A procedural defence of this kind cannot cure a decision that is independently unreasonable on its merits; it has no application where, as here, both limbs are found wanting.

The Respondent also relied on Rowland v An Post [2017] 1 IR 355, for the proposition that many procedural errors can be corrected by appropriate measures taken before a process concludes, and on Loftus and Healy v An Bord Telecom (13 February 1987) HC, as applied in McCall v An Post UD 132/1994, for the proposition that the relevant question is not whether procedures were denied but whether that denial means the employer has failed to establish the dismissal's stated basis. I have considered whether the appeal stage in this case was capable of curing the defects identified at the investigation and disciplinary stages. For the reasons set out above concerning Ms Blacker's intervention and Ms Wilkin's misattribution of a finding never made by the disciplinary panel, I am satisfied that it was not. Far from correcting the earlier defects, the appeal introduced further ones of its own. Applying the test in Loftus and Healy and McCall, I am satisfied that the cumulative denial of fair process in this case is such that the Respondent has failed to establish that the reasons given were, in substance, the fair and considered basis for the Complainant's dismissal.

Considering the foregoing, I find that the dismissal was procedurally unfair. As I have also found that the dismissal was substantively unfair, I find that the Complainant was unfairly dismissed.

Section 7 of the Unfair Dismissals Act provides, in relevant part, that where a dismissal is an unfair dismissal, the employee is entitled to redress consisting of whichever of the following the Adjudication Officer considers appropriate having regard to all the circumstances: (a) re-instatement, together with a term that it shall be deemed to have commenced on the day of dismissal; (b) re-engagement, either in the position held immediately before dismissal or in a different position which would be reasonably suitable, on such terms as are reasonable having regard to all the circumstances; or (c) compensation for any financial loss attributable to the dismissal, not exceeding 104 weeks' remuneration, as is just and equitable having regard to all the circumstances. In determining the appropriate form of redress and, where compensation arises, its amount, regard is to be had, among other things, to the extent to which the conduct of the employee contributed to the dismissal.

Having decided that the Complainant was unfairly dismissed, I must now consider the appropriate form of redress. Although the Complainant indicated a preference for compensation on his complaint form, he confirmed in evidence that he wishes to return to his employment, and I am satisfied it is open to me to consider re-instatement and re-engagement on that basis.

I have given careful consideration to re-instatement, which would require that the Complainant be treated as if the dismissal had not occurred, with continuity of employment and full back pay deemed unbroken from the date of dismissal. Having regard to the seriousness of the grossly offensive language used by the Complainant towards the driver — conduct which I do not in any way condone, and which I consider to constitute serious misconduct in its own right, independently of the physical altercation that followed — I am satisfied that reinstatement, with its full restoration of remuneration from the date of dismissal, would not adequately reflect the gravity of that aspect of the Complainant's conduct. Reinstatement is not, therefore, ordered.

I now turn to consider whether re-engagement is the appropriate remedy. In doing so, I have had regard to the guidance of the Supreme Court in An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court and Aodhagán Ó Súird and the Department of Education [2024] IESC 38, where the Court held that "re-engagement is an exceptional remedy" which "requires a clear and balanced explanation detailing precisely why a relief which is out of the ordinary is being granted in a particular case," and that "any decision on the exceptional remedy of re-engagement to the original position requires reasoning and justification by reference to the circumstances."

I note that the circumstances in Ó Súird, which concerned a school principal reporting directly to a Board of Management that had determined it had lost confidence in him, are materially different from those of the present case. The Complainant here was employed as a Production Operator with no managerial or leadership responsibilities, and the decision to dismiss him was taken by Mr Canavan, the Head of the Dundalk site, several reporting levels removed from the Complainant's day-to-day working environment. While I recognise that Mr Canavan, when the question was canvassed with him at this hearing, objected strongly to the Complainant's return and stated that he could not trust him, I do not consider his view determinative. A loss of trust founded upon findings which I have determined were themselves unreasonable cannot in and of itself render re-engagement impracticable. Consistent with the approach in Ó Súird, I consider that the practicability of an order for re-engagement must be assessed by reference to the actual working relationships and structures within which the Complainant operated, rather than by reference to the attitude of senior management alone. On that basis, it was not disputed that any day-to-day interaction between the Complainant and Mr Canavan would be minimal or non-existent, and no evidence was presented of any breakdown in the Complainant's relationships with his immediate colleagues on the factory floor. This stands in contrast to the position in Ó Súird, where the loss of confidence was located precisely in the relationship between the employee and the body to which he was directly accountable and with whom he was required to work on an ongoing basis.

I also note that the delivery driver was a third party with no continuing presence in the Respondent's workplace, that no customer or client of the Respondent witnessed the incident, and that Mr Hudson, the Complainant's supervisor at the time, has since left the Respondent's employment.

There was also no evidence presented to suggest that the Complainant's continued employment would give rise to any ongoing operational or safety risk. The Respondent did not identify any practical obstacle to the Complainant resuming work other than the asserted loss of confidence of senior management, and, for the reasons given, I am not satisfied that this amounts to an objective impediment to re-engagement.

I have also had regard to the Complainant's personal circumstances. He was a Production Operator on a modest income who has, for some fifteen months, earned no money whatsoever. He has been forced to leave Dundalk, where he worked, because he could no longer afford to live there, and has had to return to live with his mother in a small village; his ability to search for alternative work has been further restricted by the fact that he does not drive. For someone in his position, without the financial means to absorb such a prolonged period without pay, compensation, however calculated, does not address his most pressing difficulty, which is the absence of paid work itself; only a return to employment can do that.

I recognise, too, that the Complainant has paid a huge price for conduct that was of his own making, and I am satisfied that the time has now come for that price to be brought to an end.

Significantly, the Complainant has confirmed that, despite everything that has occurred, he wishes to return to employment with the Respondent. When that factor is considered together with the absence of any objective impediment to his return, the absence of evidence of any irretrievable breakdown in workplace relationships, the limited nature of the trust concerns identified by the Respondent, and the gravity of both the substantive and procedural unfairness I have found, I am satisfied that this is an exceptional case warranting the exceptional remedy of re-engagement

I therefore order that the Complainant be re-engaged by the Respondent in the position of Production Operator, or an equivalent role, at its Dundalk site, with effect from a date six weeks from the date of this decision with the period from the date of dismissal to the date of re-engagement to be deemed a period of unpaid suspension.