Complainant

Respondent

Parties

John  Gannon

Foxfield Imperial Limited

Representatives

Alastair Purdy and Co

Ercus Stewart SC instructed by  Eamonn Bennett Solicitor

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-00061222-001

26/01/2024

The complainant submits that he was unfairly dismissed and the respondent submits that the dismissal was fair.

This decision is linked to ADJ-00049906.

Preliminary Issue:

The respondent submits that both Foxfield Imperial Limited and Foxfield Inns DAC are solvent and did not dispute that the complainant’s contract of employment referenced Foxfield Inns DAC and that the complainant’s pay slip referenced Foxfield Imperial Limited.

Substantive Issue:

The respondent submits that the complainant was dismissed and that it was a fair dismissal.

The respondent submitted that the complainant was not unfairly dismissed and there were substantial grounds justifying the dismissal.  After the appeals hearing the complainant outlined he was happy with the respondent’s appeal process and with the fairness and had an opportunity to defend himself.  The dismissal resulted wholly from the conduct of the complainant and the trust and confidence in the complainant were lost and there were substantial grounds justifying his dismissal and appropriate procedures were followed.  The complainant was offered the opportunity of representation and did not avail of these and did not seek to bring or question witnesses.  Many failings and breaches of the obligations of the complainant were uncovered. Apart from his failings and breaches, he failed to properly prepare for the HR audit and did not give clarity to the employer of the importance attached to his role.  Separately and in addition other breaches of serious misconduct were discovered for which he was responsible and were raised against him at the appeals meeting.   The respondent submits date of dismissal was 28/11/2023 when the complainant was advised of the decision by Mr Reynolds.

The complainant attended the first meeting on 14/11/2023 and gave his response and was dismissed and availed of an appeal and had further opportunity to defend himself.  At the hearing of 24/11/23 serious matters were raised which could only be raised then and were put to the complainant.  However in light of all the circumstances including conduct, breaches, performance, capability, competency and behaviour and the loss of trust and confidence the dismissal was fully justified and appropriate, proportionate and not unfair.  The complainant declined representation and or witnesses and confirmed that this was his decision and elected to attend on his own and confirmed that he was satisfied with the process.

In October 2023 the respondent carried out an audit at the Imperial Hotel Galway which was intended to ensure that they adopted best practice and that legal responsibility was met.  Ms Frak Head of People & Culture carried out the audit and it was expected that Mr Gannon would give his full support and assistance.    Prior notice was given as to what would be covered and included pay slips, hours of work, recorded time breaks, visas, list of employees, contracts, list of all employees and terms and conditions.  The complainant had 2 weeks for this and yet was not properly prepared for this audit.  Many failings were discovered and serious breaches were evident.  On 01/11/2023 the audit meeting was organised for 09/11/2023 and no information was prepared in advance by the complainant.   The majority of information expected on the master audit sheet was not available and not completed and visa information was not available.  Of approximately 60 employees, 2 were under the age of 18 and 4 required visas and 9 expired or within weeks of expiration.  There were serious failing with the audit, with records and paperwork and the digital hr system and the information was inadequate.  The complainant said that the company could plead ignorance about the expired visas and such attitude was unacceptable.  It was the HR managers responsibility to ensure compliance.

The complainant was instructed to talk to 2 employees about their expiring visas and the complainant failed to talk to them and left the hotel ignoring the general manager’s lawful instruction and insubordination was unacceptable to the respondent.   The audit meeting showed that the worker failed to properly perform or comply with his duties and protect the workers and employer and these could have been spotted immediately by an inspector.  An inspector would be entitled to see visas, hours worked, permits, Sunday worked, passports, timesheets, rest periods, terms of employment and registration of employees under 18.  The complainant failed to take seriously the audit and failed to carry out his duties and did not properly prepare for the audit.

Separately on 17/10/2023 the complainant verbally abused a manager Mr Roche in a public area making a comment about his personal and private life.  A staff member stated this was not the first time that they heard the complainant trying to tarnish the employee’s reputation.  After the improper and disgusting comment the staff member said the employee concerned looked stunned shocked and hurt.  Mr Roche had to take time out to process what was said and how best to deal with this comment. It was unacceptable that lewd comments were made by the complainant against another employee.  The fact that other employees had to report this matter indicates its seriousness more particularly where the allegation was made against a HR manager who has serious responsibilities within the organisation and a person who would be expected to lead and be an example to others.  Personal insulting or derogatory comments should not be allowed in the workplace and it would be expected that the HR manager would set an example of behaviour and the staff members hoped this matter would be resolved and stopped.  Separately in October 2023 the complainant was involved in sponsorship of a football team without the knowledge of senior management and the complainant had no authority to agree to this expenditure. 

On 13/11/2023 a serious health issue arose with an employee and the gardaí and an ambulance had to attend.  The gardaí asked for the worker’s next of kin to be informed and the complainant as the HR manager did not have this information available of the HR system.  The complainant had to access the next of kin information a different way and appeared flippant and uncaring and unhelpful when he was asked for the information.

A meeting was arranged to give the complainant an opportunity to defend himself on 14/11/2023 and after a break he was asked if he wanted to add anything else and he did not.  He was also asked if he would like the notes to be read back and he said no.  The respondent was entitled to terminate the complainant’s employment without notice owing to the seriousness of the matters.  He was offered the opportunity of appeal and this was heard by Mr Reynolds CEO.  Before the appeal other matters came to light and the complainant was given the opportunity to defend himself.  One of these matters was that the company became aware of an unfair dismissal case that an employee Mr X was taking against the respondent.  This hearing was due to be heard by the WRC on 23/11/2023 and the complainant had not communicated with the respondent regarding this case or discussed it with senior management.  It was never mentioned to Ms Frak Head of Culture during her audit visit.  The complainant had dismissed Mr X through a subordinate with a text message while Mr X was abroad with no process or compliance with the disciplinary process.  The complainant has sought a different standard for himself than that which he allowed for Mr X and the respondent’s reputation was at risk owing to the behaviours of the respondent.  The complainant had the opportunity to attend the meeting of 24/11/2023 with someone but declined to do so and confirmed he was satisfied with the process.   His dismissal was confirmed as he had duties and responsibilities and his failures and inadequacies  and breaches amounted to substantial grounds for dismissal.

Dismissal without notice is justified in this case and dismissals have been held not to be unfair even where there are procedural defects or absence of natural justice which the respondents contend is not the case here.  The complainant failed to have a witness attend the hearing of 24/11/2023 despite being given the opportunity to do so.  A dismissal is not unfair where there are substantial grounds justifying the dismissal.  It is not the role of the WRC to establish the innocence or guilt of the employee.  The respondent reasonably arrived at their decision to dismiss the complainant and it was warranted and justified and the complainant was given the opportunity to defend himself.  The dismissal was justified by the conduct/gross misconduct of the complainant and the respondent was not required to retain such an employee as the degree of trust required was gone.

The matter of Mr X was important and which confirmed how Mr Gannon as a  HR expert carried out his duties and how he dismissed an employee without an opportunity to appeal.  Mr X was a foreign national who was away on leave and there was no notice of procedure or appeal and was dismissed through text message.  The company could not be expected to retain someone as HR manager who treated an employee in this way and the degree of trust and confidence necessary was undermined.  The respondent reasonably arrived at their decision.  Without prejudice to the claim the respondent submits that should the claim succeed no compensation should be awarded to the complainant.

Case law cited Neary v Dean of Westminister 1999 IRLR 288/53, British Home Stores v Burnell 1978  1979 IRLR379, Devlin v Player and Will Ire Ltd UD/90/1978,  McDonnell v Rooney 1992 ELR 214, Noritake Ireland Ltd v Kenn UD88/1983, Creighton v Meath County Council UD/1977, Devis and sons v Aitkens 1977 IRLR 314 HL, Murray v Meath County Council UD43/1978, Sheehan v H and M Keating and Son UD 534/91.

Evidence  of Ronan Walsh  Managing Director

Ronan Walsh is the managing director and Mr Gannon did not have the required experience to be successful in his application for Head of HR and was asked if he wanted to avail of further education but did not pursue it and Ms Danna Frak was appointed.  Around mid-2023 Ms Frak was asked to do an audit to assess where the businesses was with HR and if there were any areas of concern and Mr Gannon asked for the audit to be postponed.  The audit commenced on 09/11/2023 and Ms Frak told him it was unsatisfactory and Mr Gannon referred to her as the “girl” in an email when he sought access for her “I had to put that girl from the Ashling Hotel onto (electronic hr system) so that she can look at the profiles!!”.  Ms Frak told Mr Walsh it was a waste of a journey, for her and nothing had been prepared by Mr Gannon for the audit.  Mr Walsh was surprised by the lack of work that Mr Gannon had done for the audit and the concern for the respondent was that the necessary HR information was not there and the impact this might have on the company.  The hotel employs people with many different nationalities and it was necessary that if people have visas then the visas should be valid and renewed.  If the visa is not appropriate there is a heavy financial sanction for the respondent.  There was also an audit done of under 18s as this is policed by the WRC and exposure is severe and there were two people aged under 18 employed.  Ms Frak showed in her report there was a lack of information and the expectation was Mr Gannon should have been in control of this information.

Mr Walsh met Mr Gannon on 14/11/2023 and Mr Walsh asked for Des Hynes to be present also as he was general manager of the hotel and there were serious concerns in four areas arising from Ms Frak’s report.  Mr Gannon had been with the organisation a long time and Mr Hynes was new to the organisation.  Mr Gannon was handed the notes that Mr Walsh made and Mr Gannon was told the matter was serious.  The serious issues identified in the reports were regarding the HR audit and failure to have next of kin information for employees and visas.  A serious incident had happened previously with an employee resulting in the garda looking for next of kin.  When Mr Gannon was asked about what would happen if visas were not uptodate, his response was that the company could plead ignorance.  Some employees had to be terminated because their visas had expired.  It was not acceptable that Mr Gannon had postponed the audit on 3 occasions.  The emergency contact info of employees was not uptodate and not available and Mr Gannon demonstrated a ‘devil me care’ attitude which was not acceptable.  It was Mr Gannon’s responsibility to tell employees they could not work without visas and it resulted in Mr Hynes having to let people go because of their visas situation.

Item #4 on the list of allegations against Mr Gannon was regarding a hurtful comment said by Mr Gannon against Mr Roche and Mr Gannon said initially he could not recall that he had said anything that could be construed as hurtful and then Mr Gannon said it had been taken out of context.  When he was told that his hurtful comment had impacted another employee he said he felt bad and that he had nothing further to add.  There was a 15 minute break.  At this meeting there was no mention of a potential WRC case involving Mr X which Mr Walsh learned about some time after and that a WRC unfair dismissal hearing was due to be held regarding Mr X and a request for adjournment had to be sought as the respondent did not know about this case.

Cross Examination of Mr Ronan Walsh

Under cross examination Mr Walsh said depending on the position involved he might dismiss an employee or HR might dismiss them or the general manager might do it and that the HR manager did have the power to dismiss an employee.  He met Mr Gannon on 14/11/2023, probably 08:45 a.m. and the meeting at which Mr Gannon was dismissed took 35/40 minutes including a 15 minute break.  He was not sure of the relevance if Mr Gannon said the break took 6 minutes and could not recall exactly how long the meeting took and did not tell Mr Gannon prior to the meeting what the meeting was about.  Mr Hynes did not have a written statement at the dismissal meeting but made an observation at the meeting.  A document had been prepared the day before and confirmed that this document made no reference to the audit and that he had spoken to Ms Frak maybe on 11/11/23 and received the audit document sometime between the 10/11/2023 and 13/11/2023. 

Mr Walsh believed that the personnel files were incomplete and wanted Mr Gannon to explain this.  There was loads of information not available on the personnel file and a dual system was operated of paper format for files and electronic and he took the word of the HR person Ms Frak that the files were not complete.  The purpose of an audit is to take stock at a point of time and that it would be a disciplinary matter if serious items were identified during an audit.  He had a verbal conversation with Ms Frak about the audit and could not recall if he told Mr Gannon everything that Ms Frak told him and he could not recall if he asked Ms Frak if Mr Gannon had responded to her queries and he did not check with Ms Frak if she had looked at the paper files for some of the information that she said was missing.  He did not check if there were emergency contact numbers available and did not check up to see specifically what employees were alleged to have expired visas.  Mr Gannon was not just dismissed for one item but for a number of allegations and Mr Walsh did not take a statement from the general manager and give it to the complainant.  Mr Gannon told Mr Walsh the information was on the paper files and Mr Walsh did not check this out.

Mr Walsh said he did not know if you have a grace period after a visa expired and Mr Walsh did not check any of the visas that he said had expired.  Mr Walsh was relying on the information that people told him about Mr Gannon including Ms Frak’s and it was good that he terminated Mr Gannon’s employment as it was just the tip of the iceberg.  Mr Walsh did not get a written statement from the employees who came forward about the comment said to Mr Roche at reception at the time and he did not ask Mr Hynes to respond to Mr Gannon’s statement.  It had been communicated to Mr Walsh what Ms Leona Evans and Simon Carter two employees who heard what Mr Gannon said at reception to Mr Roche.  He could not recall what they said the exact comment was but it was something about Mr Gannon was not surprised that Mr Roche had to get divorced or something like that.  He did not believe he had a statement from Mr Roche before the complainant was dismissed.

Ms Evans and Mr Carter’s statements do not say what exactly were the comment that Mr Gannon said about Mr Roche and they sent their statements to Des Hynes.  Mr  Walsh did not have details of the exact comment before he dismissed Mr Gannon for this comment.  A break was taken at the dismissal meeting and a decision to dismiss was made and Mr Walsh did both the investigation and disciplinary as someone had to and that there was no investigation to do in the most part and the facts were written down, opinions after the facts are opinions, visas were about to run out, audit was not complete and Mr Gannon had responsibility for this. 

At the time of dismissing Mr Gannon, Mr Walsh did not know an issue had arisen regarding Mr X taking a case to the WRC.  Mr Walsh confirmed responsibility for visas is a two-way thing between both Mr Hynes and Mr Gannon and he did not see Mr Hynes as just a notetaker at the meeting.  He asked Mr Gannon if he had anything else to say at the dismissal meeting which he did not and therefore he would not let him add anything else later on when Mr Gannon asked as Mr Walsh had already given Mr Gannon an opportunity.  Mr Walsh accepted as correct the information given by Ms Frak and Mr Hynes and did not make an independent enquiry.  He did not know what process Ms Frak used to conduct her audit but believed there was a process.

Evidence of Ms Deanna Frak Head of People & Culture

Ms Deanna Frak said she was Head of People & Culture reported to Mr Walsh and Mr Gannon did not report to her.  She confirmed there was to be an audit to see where they were as a company and she has done this audit regularly.  Mr Gannon was not available for some dates suggested for the audit and the purpose of the audit was to take a snapshot of HR and then with everyone on the same page there would be a Standard Operating Procedure (SOP) created for future audits.  Before the audit she received two statements from Simon Carter and Leona Evans about comments they heard Mr Gannon say.  Ms Frak attended the hotel in Galway and was brought to an open plan office to do the audit and not a HR office and initially Mr Gannon had difficulty logging on to the computer and he seemed reluctant to navigate through the system.  Ms Frak asked for some information and Mr Gannon said the lady in payroll had this information and Ms Frak noticed there were many gaps to which Mr Gannon said the lady in pay roll would have this.  It was Ms Frak’s expectation that there would be a lot more information available for her such as employees’ files and paper files but they were not forthcoming.  She later saw that he emailed the HR contractor looking to give IT access to Ms Frak and referred to her as the “girl”.  She was missing employees’ PPS numbers, addresses and bank details and could see the electronic HR system was not used to its full potential by Mr Gannon with many gaps and the exposure for the respondent huge if visas are not processed appropriately. 

Mr Gannon told her there were two employees who were under 18 and she worried whether their hours were tracked appropriately at the hotel and Mr Gannon confirmed that not all employees had signed contracts and that he was doing a review of job descriptions for people but she did not see any review of this having taken place.  She did not talk to Mr Gannon about her concerns and Mr Gannon could have had things organised for the audit but did not and she was not confident he had the relevant information.  She did up a report and regarded the situation as serious and reported this to Mr Walsh.

Cross Examination of Ms Deanna Frak

Under cross examination Ms Frak said she gave a verbal communication to Mr Walsh regarding her concerns and the purpose of the audit was to bring her experience of a previous hotel to the hotels and ensure all hotels were aligned.  The concern was that she was not confident that Mr Gannon had the records referred to and she believed Mr Hynes had concerns with staff morale at the hotel.  She emailed Mr Gannon on 01/11/2023 as she had planned on spending some time at the hotel doing the audit and knew that files were either on the electronic system or paper files.  She arrived at about 09:30 am, met Mr Gannon and Mr Hynes in the general foyer area and it was more of a hello rather than a formal meeting and after one hour she got access to the system but it was not the full access and that took a little longer and it was the first audit with Mr Gannon and the audit took  about 4.5 hours.  Mr Gannon had been specifically told what she was looking for and it was not forthcoming with no paperwork offered to her.  The audit report was typed up on 10/11/2023 and sent to Mr Gannon’s superior Mr Walsh and did not send it to Mr Gannon as that was not her priority.  The purpose of the report was to highlight gaps and there was very much a push back from Mr Gannon.  She was not aware at the time that Mr Gannon made reference to her as “the girl” and flagged the 20 names that there were visa concerns as it was difficult to do a review and if the information was there it was not given to her.  There was a possibility of a breach and there was a question about the employees who were under 18.  Ms Frak spent 4.5 hours at the hotel and did not have the info and there were many gaps within the excel spreadsheet. 

She did not talk to Mr Walsh prior to 14/11/2023 regarding the disciplinary meeting and confirmed that her interpretation within the procedure where it state “we reserve the right to bypass the procedure” meant that the respondent did not have to go to verbal and could skip that and proceed to dismissal and confirmed that this would mean bypassing a sanction and not bypassing the actual procedure.  She was not aware that statements were not put to Mr Gannon regarding allegations and would assume that Mr Gannon was given an opportunity to respond to allegations and that there should have been an investigation and an opportunity to respond and she would put documents to an employee before a disciplinary meeting.

Ms Frak did not have concern when Mr Gannon said everything was not on the electronic system and she had completed two or three other audits and she did not do any prep for the audit.  She had received the statement from Leona Evans but did not act on it and did not tell Ms Evans that Mr Gannon would have the right to see this statement and she did not look for job descriptions.  Ms Frak did not take minutes of the audit and she did not specifically ask for paper files and did not have a formal process when doing the audit.

Evidence of Leona Evans Reservations Manager

The evidence of Leona Evans was that she was Reservations Manager in Galway and on 17/10/2023 was in a public area of the hotel with Simon Carter, Donnacha Roche and Frank Murphy and there was a wire on the wall and Mr Gannon said to Mr Roche it is no wonder your wife divorced you.  Mr Roche seemed taken back about this remark and said that all present were all taken back by this remark and she saw Mr Gannon do that to other staff and Mr Gannon seemed nice but it was always a show.

Cross Examination of Ms Evans

Under cross examination Ms Evans said she was at the front desk and a wire was to her right and she wrote her statement afterwards when she was asked for it by Mr Hynes around 25/10/2023 and she did not know who told Mr Hynes about this incident as he was not there.  She had not known Mr Roche was divorced and she said it was a hurtful comment and a personal attack on Mr Roche. 

Evidence of Mr Simon Carter Reservations Supervisor

The evidence of Mr Simon Carter was that he was Reservations Supervisor on 23/10/2023 around 2-3pm  and was standing behind reception and management were talking about a small wire and he heard Mr Gannon make a comment to Mr Roche that that was why he was divorced and Mr Roche seemed a bit taking back and looked stunned and he did not recall Mr Gannon being apologetic and did not think it was appropriate banter to make.

Cross Examination of Mr Simon Carter

Under cross examination Mr Simon Carter said he was standing at reception and heard Mr Gannon say now I know why Mr Roche is divorced with reference to the small piece of wire.  It was Mr Hynes who asked Mr Carter to write a statement about the incident.

Evidence of Mr Donnacha Roche Deputy Manager

The evidence of Mr Donnacha Roche was that on 17/10/2023 he was present at reception with other staff and from his memory Mr Gannon said “is it any wonder you’re fucking divorced”.  There was a mirror opposite reception and Mr Roche was trying to put the wire back in and Mr Gannon said the comment in front of some employees and Mr Roche felt embarrassed by the comment and someone asked him was he ok and he felt quite emotional.  He spoke to Mr Hynes about it and said his divorce was a private matter and it hit a raw nerve and brought up his past.  He cried after the comment and went out the back and did not want anyone to see him and did not want others to be aware of his divorce as it was his own personal information.

Cross Examination of Mr Donnacha Roche

Under cross examination Mr Roche said he knew Mr Gannon for over 20 years and Mr Gannon was a friend and had joined the hotel maybe 7 months before the incident.  He denied that Mr Gannon said “you and your wire”.  He did not want Mr Hynes to speak to Mr Gannon about it, did not know Mr Hynes was going to go and talk to people about it and did not give a statement to Mr Hynes and just verbalised to Mr Hynes what had been said.  He spoke to Mr Gannon about the incident and Mr Gannon said it was not his intention to cause upset and Mr Gannon apologised and that was the end of the matter for Mr Roche.  Mr Roche did not lodge a complaint and never said anything at the time and was only asked for a statement about what occurred when Mr Gannon’s WRC proceedings were kicked off and it was then that Mr Roche wrote a statement.  Mr Gannon knew about the divorce and said it was an off the cuff remark and he did not recall Mr Hynes saying he was going to investigate it.  Mr Roche told Mr Hynes what happened during a private conversation and was surprised by Mr Hynes proceeding with interviewing people as he did not ask him to do this and it was done without his knowledge.  This was very distressing for Mr Roche and he never viewed the comment as sexual innuendo.  He was not forced by the respondent to attend the hearing to give evidence.

Evidence of Mr Frank Murphy Duty Manager

The evidence of Mr Frank Murphy was that he was duty manager and was present when the wire was mentioned by Mr Gannon who said “is that why your fucking wife divorced you”.  Mr Murphy was shocked and is divorced himself and thought it was a sexual reference to manhood.

There was no cross examination of Mr Murphy.

Evidence of Mr Des Hynes General Manager

The evidence of Mr Des Hynes was that he was general manager and that he believed that the audit results were a gross failure and matters were extremely concerning and he would not have expected these results.  The audit took place on 01/11/2023 and from a HR point of view it was gross negligence and all of the allegations were serious and left the company totally exposed.  There were 4 points brought to Mr Gannon’s attention at the meeting of 14/11/2023 that he attended with Mr Gannon and Mr Walsh.  The personnel information had not been uploaded onto the system and there had been a serious issue with the health of an employee and the garda and ambulance were called and Mr Gannon could not give Mr Hynes the details of next of kin.  There were also issues with 2 employees working without a visa and Mr Gannon said the company could plead ignorance.  11 employees were impacted with the visas and the hotel had to get support from other hotels.  Employees brought to Mr Hynes attention the issue that had happened at reception as they felt strongly about it and Mr Gannon was given the opportunity to add to the meeting of 14/11/2023 but did not.  He did not know that Mr X was bringing a case to the WRC and it would have been expected that this would have been passed to him as the manager and this employee had been terminated on November 2022.  It would not be policy to terminate employees by telephone and it would not be policy to terminate someone who is out sick.  Mr Gannon never mentioned to Mr Hynes that there was a WRC claim regarding Mr X.  Employees had been told to delete Gmail accounts and not to use them for work matters and Mr Gannon continued using a Gmail account.

Cross Examination of Mr Des Hynes

Under cross examination Mr Hynes confirmed that he agreed with Ms Frak’s evidence and agreed with the concerns she had and said that there had been a breach of natural justice against Mr Gannon.  He liked working with Mr Gannon as it was a pleasant relationship and they had a good working relationship and he had no axe to grind with him.  He confirmed that his statement said there were criticisms of Mr Gannon and he had issues with him at work.  Mr Hynes would try and bring people along with his management style and was not involved in the audit and had concerns about contracts but never raised his concerns with Mr Gannon.  He did not recall the conversation with Mr Walsh before the dismissal as Mr Walsh was in Dublin so it was probably a telephone conversation he had with Mr Walsh and there was a detailed meeting when Mr Gannon was dismissed on 14/11/2023.  Mr Walsh was at the hotel before 8am and Mr Hynes did not give input into the statement that Mr Walsh had in front of him and Mr Hynes printed it off for Mr Walsh.  It had been agreed that Mr Hynes would be present at the meeting.  He thought most of the employees’ information would be on the electronic system and only looked at the electronic system for rosters.  He had not seen Ms Frak’s report prior to dismissal and it was not a legal requirement to have all files on an electronic system but that they did not have contracts or visas.  He denied that he wanted Mr Gannon out and could not recall if it took Mr Gannon 2 minutes to locate the emergency contact number of the employee. 

He never put it to Mr Gannon that he was uncaring and there  were several expired visas with two due to expire.  He said Mr Gannon had discussed visas with him but not in great detail and the employees with visas were not illegal but needed to lodge renewals.  He approached the witnesses to the incident at Reception because they mentioned it and he approached Mr Roche about it and Mr Roche did not raise a formal complaint about Mr Gannon.  Mr Hynes did not know why allegations were not put to Mr Gannon in advance as he was taking notes at the meeting of dismissal and it was not Mr Hynes decision to terminate.  He went through the notes he took with Mr Walsh and there was discussion about the allegations against Mr Gannon.  Mr Walsh did not ask Mr Hynes for advice but he probably did talk about the seriousness of the matter to Mr Hynes during the dismissal meeting.  He confirmed that he did not tell Mr Gannon the purpose of the meeting and was there as notetaker, did not think that Mr Gannon was going to be dismissed and denied that he was witness, judge, jury and executioner.  He had heard there was an appeal of the dismissal and denied he knew about the issue with Mr X and confirmed that he had met Mr X previously and confirmed that Mr X had mentioned Mr Hynes in his WRC complaint form but that he had left it to Mr Gannon to sort out.  Mr Hynes denied he was looking for a reason to terminate the complainant’s employment and confirmed that he never sat down to discuss any performance matters with the complainant. 

Mr Hynes reports to Mr Walsh and it would not be Mr Hyne’s role to question the boss.  Mr Hynes read through the notes at the dismissal meeting and discussed the events with Mr Walsh and Mr Hynes would not question his superior Mr Walsh.  He did not seek out Ms Frak’s advice on the role of notetaker and all he had been told was to tell Mr Gannon to come to the office.

Evidence of Mr Gabriel Reynolds Chief Executive Officer

Mr Reynolds direct evidence was to read the entirety of the stenographer 109 pages of transcript from the appeals meeting as he said this was important to understand exactly what had been said at the appeals meeting. 

Mr Gabriel Reynolds is CEO and the transcript he read from included that he reminded Mr Gannon he had been afforded the right to have someone accompany him at the appeals meeting and it was noted that Mr Gannon declined.  Mr Reynolds advised the decision of the appeal was binding and the only people present was Mr Reynolds and Mr Gannon and the stenographer.  Mr Gannon was told he would get a copy of the transcript and everything would be above board and Mr Reynolds had no involvement with the hotel and was simply the CEO of the parent company and was a barrister at law and a legal officer of the company.  He had no knowledge of the appeal apart from what he had seen on papers served on him the day before and was sure it was difficult for Mr Gannon and wanted to ensure that Mr Gannon was still being paid. Mr Reynolds referred to time between the dismissal and the appeal as “suspension” of sorts.

Mr Gannon told him there were four grounds to his appeal including he was not told it was disciplinary meeting or an investigative meeting.  Mr Reynolds advised Mr Gannon that there were two further allegations and Mr Reynolds could decide on an alternative sanction if he saw fit and that the appeal was confidential and he would communicate his decision to Mr Gannon within 5 days.  Mr Gannon said he wanted a copy of the handwritten minutes of the dismissal meeting and has only received a typed copy and Mr Reynolds reminded Mr Gannon that he had been given an opportunity to have the minutes read back to him on the day but did not do so.  It was a pity Mr Gannon had not looked for these handwritten notes before the appeal but that Mr Reynolds would look for a copy and compare them with the typed notes received. 

Mr Gannon said the notes of the dismissal were incorrect and denied he got 2 weeks’ notice of the audit and he hoped to learn something from the audit and that Ms Frak did not look at employee’s paper files and he asked for feedback afterwards and did not get it.  Mr Reynolds told Mr Gannon Ms Frak looked for a list of employee details and it would have been expected that Mr Gannon would have that information readily available and provided it to Ms Frak and Mr Gannon said he did not have all information on the electronic system, had it on the paper system and contracts would be on the paper system and annual leave on the electronic system.  Mr Gannon denied the electronic system was not complete but said it was correct.

Mr Reynolds asked about employees under 18 and was told there were 2 employees under 18.  He told Mr Gannon that he had been informed of the audit on 23/10/2023 by Mr Ronan Walsh and Mr Gannon said Ms Frak gave him 6 days’ notice.  Mr Reynolds asked what was meant when Mr Gannon said in an email to Mr Hynes about having an audit “I told you this would happen.  Today was probably my worst day working in the Imperial for other reasons butyou have put the fucking cherry on the cake now” and that Mr Gannon did not know why he said that and had been having a very bad day.  Mr Reynolds said he was respectful of Mr Gannon and told him he was not trying to trap him and put to him the second allegation regarding not having the next of kin information available for an employee who became ill and he said that a 2 minute delay between a phone call requesting the employees next of kin details and getting it would not be considered a delay.  Mr Reynolds reminded Mr Gannon that he was going to call for the handwritten notes of the dismissal meeting as the typed up notes said “the information was available but not on the ….HR system”.  Mr Reynolds read the minutes of the meeting of 14/11/2023 that referenced John Gannon had “intimated the company could just plead ignorance if an inspection was carried out by the relevant authority” in relation to expired/expiring visas.  The notes from the dismissal meeting referenced that Mr Gannon was told to speak to employees impacted by visas expiring immediately but Mr Gannon left without speaking to employees.  Mr Reynolds was told by Mr Gannon that only four employees required visas and the company did not apply for visas on their behalf.  Mr Reynolds apologised on occasion to Mr Gannon if it appeared that he was cutting across him and was told by Mr Gannon that the clarification of visas was also given at the meeting of dismissal but not captured in the notes.  When Mr Gannon was asked if he said that the company pleaded ignorance Mr Gannon answered you cannot plead ignorance and said he did not recall saying that at the meeting and he could not remember ever saying that at the dismissal meeting and it was not something that he felt he would say.  Mr Reynolds said he was not looking to trap Mr Gannon but he wanted to know if it was said or not said and that it was not an inquisition and that the appeal was a de novo approach.  Mr Reynolds said he would not dwell on it and he did not want to adjudicate on something that is manifestly wrong as it would be unfair in respect of legislation and natural justice and that Mr Reynolds was an honourable man. 

Mr Gannon said Mr Hynes never said that he was to speak immediately to employees and he did speak to employees about visas.  Mr Reynolds asked if Mr Hynes and Mr Walsh were misleading Mr Reynolds by making allegations against Mr Gannon. Mr Gannon said that he spoke to the people about the visas at different times and refuted the allegation of insubordination and had come back to work after his shift to talk to one of the employees. 

Mr Reynolds put the four issues to Mr Gannon at the appeals meeting regarding the comment said in a public area that was hurtful regarding another employee’s personal circumstances.  Mr Reynolds read the notes of the dismissal referencing “it is totally unacceptable in any workplace for any hurtful, lewd or personal comments to be made about another employee”.  Mr Gannon denied making any comment and said his memory is normally excellent but was different over the last few weeks.  Mr Reynolds reminded Mr Gannon that it was a fair and open procedure and he did not know whom it was alleged Mr Gannon made a personal comment against as it was not within the papers and he did not know if it was a verbal or written complaint made against Mr Gannon and it was unfortunate Mr Gannon did not have minutes read through at the dismissal meeting.  Mr Gannon was reminded that Mr Reynolds did not want to put words in Mr Gannon’s mouth but wanted to know if Mr Gannon recalled the incident and what might have been said and was told Mr Roche called to Mr Gannon’s office on 23/10/2023 and sat and cried and that he and Mr Roche were lifelong friends for over 20 years. Mr Reynolds was told Mr Gannon’s recollection was that he said “you and your wire” to Mr Roche when discussing why a wire was sticking out on a wall and had not been capped and Mr Roche came to Mr Gannon on the Monday upset about the comment.  Mr Reynolds asked why the comment regarding the wire had not been clarified at the meeting on 14/11/2023 and Mr Gannon said it was because he was taken aback at that meeting of 14/11/2023 and would not have known his own name at that meeting.  Mr Reynolds asked if Mr Gannon said that he was not himself on that day of the dismissal meeting and Mr Gannon said no.  Mr Reynolds said that Mr Walsh and Mr Hynes could not be expected to know that to which Mr Gannon said he was sure they knew by his demeanour.  Mr Reynolds agreed he could not understand how if it was a comment about a wire it could be assumed to be anything about Mr Roche’s personal life and or as per the handbook this comment could be seen to fall under lewd or hurtful.  Mr Reynolds asked were the employees therefore misleading Mr Reynolds.

Mr Reynolds said it appeared Mr Gannon was refuting the four items put to him and Mr Reynolds would have to dig more deeply as Mr Gannon was saying there was not a scintilla of truth what was brought up.  Mr Gannon confirmed to Mr Reynolds that there was a 15 minute break and that he had nothing to add before the break regarding matters that was put to him.  Mr Reynolds said if Mr Gannon had not been paid up to the appeal it would be manifestly unfair despite Mr Walsh suggesting otherwise and nothing really turned on when Mr Gannon received the notes as he got them a week before the appeal.

Mr Reynolds put it to Mr Gannon new information regarding a Mr X and showed Mr Gannon some documents which he then took back from him and asked if Mr Gannon knew Mr X was taking an unfair dismissal complaint against the company to the WRC with a WRC hearing date set for the week after the dismissal of Mr Gannon.  Mr Gannon said he did know and that he brought everything to the attention of Mr Hynes who helped him write the letter of dismissal, would not have sent the letter without Mr Hynes okaying it, Mr Hynes was aware of the whole procedure and Mr Walsh had also agreed with the dismissal of Mr X.  In April 2023 Mr Reynolds was told that there had been a video meeting with the HR consultancy company involved regarding the case and had communicated this to Mr Hynes.  Another manager was delegated to dismiss Mr X at the instruction of Mr Gannon.  Mr Reynolds said that it would be a matter for HR to dismiss an employee and that he thought it unusual that someone who was the direct manager of Mr X and also his friend would be requested to dismiss Mr X.  Mr Reynolds asked Mr Gannon if he was absolutely certain that Mr Walsh and Mr Hynes both knew Mr X was to be terminated as Mr Reynolds said Mr Gannon had told him his memory was not the best at times.  Mr Reynolds asked Mr Gannon if it was an error of judgement, if he was bullied into it to go against the handbook and allow an assistant manager fire Mr X and Mr Gannon said it was a collective decision.

Mr Reynolds asked if Mr Gannon had ordered soccer kit for a local soccer club and Mr Gannon said the hotel were looking to support smaller sport clubs and nothing was ordered.  Mr Reynolds asked Mr Gannon if he did work for the company after he was dismissed and if he still used a Gmail address despite being told not to.  Mr Gannon told him that the Gmail address was sometimes used by people to send him emails and he was working with IT to get that resolved.  Mr Gannon said he was told not to go to the respondent’s premises when he was dismissed and he did not.  Mr Reynolds asked Mr Gannon if he sent an email to the HR consultancy group advising he was dismissed unfairly and requesting a temple for the appeal and Mr Reynolds asked why he would do that and Mr Gannon said a moment of madness and a moment of desperation and that he was a broken man.  Mr Reynolds said that Mr Gannon could have used google to find a template and Mr Gannon said he was overwhelmed.  He told Mr Gannon he had been reminded he could have brought someone and could have got legal advice and did not want to know if he did get legal advice but it had been offered to him.  Mr Reynolds asked if there was anything else to add and he realised it was very difficult for Mr Gannon and Mr Gannon said he had 20 year unblemished record and if management wanted him to do something different they could have trained him and Mr Reynolds said they would not have trained him as he is already trained and knows much more than any of them in HR.  The appeal then concluded with Mr Gannon signing over the work Gmail account. 

Cross Examination of Mr Reynolds

Under cross examination Mr Reynolds said he was legally trained and a barrister and does not advise the company on legal matters and if it is a small legal matter he might deal with it.  His expectation had been that the complainant would have been paid up to the date of appeal and was surprised to hear that the complainant had not been paid.  The appeal was held on 24/11/2023 and the email from Mr Reynolds refers on 28/11/2023 to further correspondence regarding the dismissal of 14/11/2023.

“I write to tell you for the reasons which will be stated in my further correspondence to you, that my decision in respect of your said Appeal is to uphold the decision taken on the 14th. of November 2023 to dismiss you.“

 He said an appeal nullifies an earlier decision to pay the complainant up to appeal and did not know if the complainant got a copy of the stenographers transcript from the appeal meeting which had been promised.  Mr Reynolds took statements from people and did not put those statements to the complainant and was not required to put those statements to the complainant.  He did not believe he had to put any additional statements that he sought from people to the complainant for the appeal. 

The final correspondence to the complainant from Mr Reynolds was by email on 28/11/2023 letting the complainant know the result of the appeal.  During the appeal process other items were brought to Mr Reynolds attention that were not available at the time.  The dismissal was regarding allegations of 4 matters and then 2 further allegations were there.  It was Mr Reynolds understanding that the appeal was to take a fresh look at all the allegations and he did not reinterview people and he had minutes and emails from the meeting.

It was his understanding that the results of HR audit from Mr Gannon did not come up to the standards expected of a HR person.  Mr Gannon said he had paper documents and employees’ information was not available and it was not there and it should have been there for Ms Frak.  It was a fresh look at everything and he was aware of allegations and was aware Ms Frak raised concerns regarding the HR function and was aware of the rule book and handbook and was trying to do what was best practice. Ms Frak is a HR person and the best practice might not be the HR practice at the Imperial Hotel and he relied on emails he had received from people regarding Mr Gannon and Mr Gannon did not ask for those emails at the meeting.  Mr Gannon was the HR manager and he could have brought representation to the appeals meeting but did not.  Mr Reynolds was very careful to ensure that the meeting was not held at the hotel in Galway and brought Mr Gannon to Dublin to hear the appeals.  It might not have been best practice by Mr Gannon to have paper files and electronic files and Mr Reynolds did not rely on the audit report at the appeals meeting.  Mr Gannon had asked questions at the appeals meeting and Mr Reynolds went back and talked to people and then Mr Reynolds got the report.  Ms Frak was not in a position to say that it was gross misconduct and that was for Mr Reynolds to decide.  Mr Reynolds said he was not going to say what was the actual gross misconduct that occurred.  Mr Reynolds was told that the emergency contact information for an employee should have been on file but was not.  Mr Reynolds had been told by Mr Hynes that the emergency contact number was not received within 2 minutes and that was enough information for Mr Reynolds.  Mr Gannon failed to give straight answers to questions put to him.  Mr Gannon had been evasive and said things like “it was not in his nature” and said his memory was not good since then.  It was fundamental when he had a degree in HR that Mr Gannon should have known better and Mr Reynolds did not know what was the alleged comment that Mr Gannon had made to Mr Roche.  He did not make any assumption that it was a lewd comment that Mr Gannon had made but went back and asked others. 

Mr Reynolds refused to give the grounds for dismissal of Mr Gannon.  He received information about Mr X around maybe 22/11/23 and he knew there was a hearing imminent and put it to Mr Gannon as he was the person dealing with it.  Mr Hynes had denied that Mr Gannon had spoken to him about it.  Mr Reynolds did not know why he did not send information to Mr Gannon about the case to do with Mr X considering he had the documents earlier and Mr Gannon did not ask for them.  The file Mr Reynolds received was received possibly from Mr Hynes and the file spoke for itself.  Mr Gannon was given 3 scenarios during his appeal and Mr Reynolds made enquiries but did not speak to Mr Hynes about the WRC case concerning Mr X.  Mr X’s case was part of the decision to uphold the dismissal as the papers spoke for themselves.

Other questions put to Mr Reynolds that he answered were that he did not believe that Mr Gannon was entitled to have all the information for his appeal and that it would not be best practice to give him all the information that Mr Reynolds had.  He did not provide the complainant with any information that he found out following the appeal.  It was Mr Reynolds belief that he did not have to legally provide a reason for dismissal to the complainant and he did not know that Mr Hynes was note taker and also the investigator at the dismissal meeting and in hindsight Mr Gannon should have been given a chance to respond.  The appeal he heard was de novo and Mr Reynolds had the legislation and asked for assistance and has not carried out an appeals meeting before in Ireland but did it in the UK.

Preliminary Issue:

The Complainant has issued proceedings against two companies, Foxfield Imperial Limited and Foxfield Inns DAC. The reason for this is staff who were employed by Foxfield Inns DAC dismissed the complainant, conducted the appeal, and the complainant had an employment contract with that company. The payslips however, reflect that the Complainant was paid by Foxfield Imperial Limited. The Complainant respectfully requests the adjudicator to make enquires of the respondents to clarify the correct legal entity for the purpose of the hearing. The Imperial Hotel is a business name, whose owner is Foxfield Inns DAC, the second named Respondent and both companies are solvent.

Substantive Issue:

The Complainant alleges he was unfairly dismissed on 14/11/2023.  The Complainant lodged his claim with the WRC on 26/01/2024 and is a 50-year-old, male, who commenced working in the Imperial Hotel when he was 16, circa 1989 and initially worked there part-time, whilst attending College in Galway, and worked on and off thereafter, up until 1999. The Complainant holds a diploma in Hotel Management and a degree in HR Management. In 1999, he commenced working in the Ashling Hotel, in Dublin, which is a sister hotel of the Imperial, moved to the Imperial Hotel in 2003, and worked in the position of HR manager until his dismissal. Prior to his dismissal the Complainant was employed as the HR Manager of the Imperial Hotel 35 Eyre Square, Co. Galway and had an excellent working relationship with both former directors and staff throughout the years. The hotel employs 62 staff.   

In June 2022 Ronan Walsh, was appointed Managing Director and had been previously General Manager of the Ashling Hotel. The Complainant submits he was Mr. Walsh’s main point of contact, given his familiarity with the running of the Hotel and in October 2022 Mr. Walsh requested the Complainant attend the Ashling Hotel to meet Mr. Des Hynes, who had being appointed General Manager. The Complainant was to be his point of contact. The Complainant submits he got on very well with Mr Hynes, and worked very closely with him on all operations / policies / direction for the Imperial Hotel.

In November 2022, a meeting took place of senior staff members / managers of the Imperial Hotel, Savoy Hostel and Zappis restaurant and both Ronan Walsh GM and Gabriel Reynolds CEO were in attendance. The purpose was to discuss recent changes to the overall company and the complainant was advised to bear with them, as they wanted to change things within the company and in March 2023, Mr Hynes approached the Complainant to discuss employing a Deputy General Manager / Operations Manager. He had concerns about the managers currently within the hotel and he needed to have someone in the Imperial Hotel to back him and be his “eyes and ears”. Donnacha Roche, a friend and former work colleague of the complaints was appointed to the role of Deputy General Manager after an introduction by the Complainant to Mr. Hynes. The interview process was conducted by both Mr. Hynes and the Complainant. Mr Roche commenced employment with the Imperial Hotel on 02/05/2023. and around April 2022, Mr. Walsh approached the Complainant advising the HR Manager in the Ashling hotel had left, and asked him to consider applying for the position of Group HR manager. One requirement of the position was a Master’s degree, and both he and Mr. Hynes encouraged him to apply for one but the complainant did not pursue the masters as he would have had to work up the time. Employment proceeded without issue, however the Complainant felt he was being left out of management meetings and discussions concerning the direction the Hotel was moving in.

In August 2023, he approached Mr Roche  and stated to Mr Roche that he got the feeling he was no longer wanted in the hotel, and requested him, as a friend, to tell him if he heard anything. He also approached Mr Hynes on a number of occasions on the issue between August 2022 to November 2022. His response was “stop that sure you are doing a great job, keep your head down and keep going doing your work”.   Approximately November 2022, the complaint raised an issue with the accounts department and the CEO of the company, Mr. Gabriel Reynolds, regarding non-payment of invoices to suppliers. This query arose as a result of the Complainant receiving a number of phone calls, and emails from suppliers of the Hotel, concerning outstanding invoices. A number of suppliers had threatened to stop supplying goods and one refused to supply goods. The Complainant initially raised the issue with Mr. Hynes on a number of different occasions. However, when it persisted, he sent an e-mail to head office in Dublin advising Mr Hynes in advance who agreed and said it was terrible suppliers were not paid and that it was embarrassing.  A few days after sending the email Mr Hynes came into the Complainant’s office and informed him that there was now a target on his back, and Mr. Gabriel Reynolds was not happy with him. Sometime after this the Complainant was approached by another senior manager in the company and was told there was “a target on his back” and was told that the email he had sent had arose during a meeting with Ronan Walsh and Gabriel Reynolds.

In September 2023, the Complainant noticed that Mr. Walsh had become more distant and wouldn’t call into his office when he was in Galway, as before. The Complainant found this difficult to process, as he thought he had a very good working relationship and throughout September 2023, the Complainant increasingly felt he was being excluded from business at the hotel.  After two days leave in October the Complainant returned to work and attended the regular 10.30 am meeting. During the course of this meeting Mr Hynes asked the Accommodation Manager if her roster was okay and advised her if she had an issue with staff to speak to Mr Carter which the Complainant found strange as this was his role.

On Tuesday 14/11/2023 at 08.55am Mr. Des Hynes came into the Complainants office, and advised Mr. Walsh wished to speak to him immediately. The Complainant queried if he needed anything, and was advised no. The Complainant was not advised the purpose of the meeting. When the Complainant entered the office Mr. Walsh was present and requested the Complainant to take a seat, and thereafter Mr. Walsh informed him that four incidents had come to his attention, which raised concerns regarding the Complainants performance. He then read from a typed email. After reading out each incident, he gave the Complainant an opportunity to reply. The Complainant, was taken completely by surprise offered a brief reply. After finishing putting his concerns to the Complainant, Mr Walsh instructed him to go get a coffee, and come back in 15 minutes. The Complainant left the meeting at 9.08am, went to the lounge, and gathered his thoughts. He was summoned back into the meeting at 9.14am. He advised Mr. Walsh that he could answer the issues raised, however, Mr Walsh informed him that he had had his opportunity to reply. Mr. Walsh then stated given the issues raised he was being dismissed with immediate effect. He was informed he could appeal to Mr Reynolds, and was not to enter the premises in the immediate future. Mr Walsh also informed him that he would receive a registered letter with a copy of the notes and relevant paperwork, and he was to return the company car and phone by Friday.

The Complainant was escorted to his office, to collect his personal items, and to hand back his keys and left the building at approx. 9.30am. No registered letter was received, and the Complainant did not return the property on or prior to Friday 17/11/2023 as he received no correspondence from Mr. Walsh. On 18/11/2023 at 7.23am the Complainant received an e-mail from Mr. Walsh with a copy of the notes and paperwork from the meeting. On 20/11/2023 the Complainant lodged an appeal with Gabriel Reynolds. Mr. Reynolds responded stating he would be paid his normal rate of pay during this period, including the days since he was dismissed. The Complainant attended the appeal hearing on 24/11/2023 in Dublin. During the course of the appeal hearing Mr. Reynold raised two new issues of concern, which had not been raised at the disciplinary stage. The first was whether the Complainant agreed sponsorship of €2600 to a local football team. The Complainant responded that Mr Hynes had agreed and committed to sponsorship of a local football team. Mr. Reynolds also raised an issue about a WRC case with an employee named Mr X. Mr Reynolds stated that Mr Hynes and Mr Walsh were unaware of the case of Mr X. Having conducted the appeal, Mr. Reynolds e-mailed the Complainant on 28/11/2023 stating he would write setting out the reasons for upholding the dismissal, and also confirmed the dismissal but no further correspondence from him was received. On Friday 01/12/2023 Mr Walsh wrote stating the dismissal date was the 14/11/2023 and they would not be paying him his salary during the appeal.

The Complainant submits at no stage since Mr Walsh took over the running of the Imperial in June 2022, since Mr Hynes became GM in October 2022, since the new CEO Mr Reynolds was appointed, since Mr Roche became Deputy GM or since Ms Frak became HR Manager of the Ashling Hotel was he ever instructed or informed that the HR systems, procedures and policies he was relying on during the course of his employment were no longer acceptable, and that he had to adopt new procedures. At no time prior to the meeting was he ever approached about his work place ethics. prior to or during the meeting was he advised it was a disciplinary hearing, which could have resulted in his summary dismissal.

 In 20 years working with the company, a year and a half working with Mr Walsh and 13 months working with Mr Hynes he was never spoken to about any aspect of his work not being up to standard or being unacceptable. The Complainant never had a complaint made against him by any member of management, staff, customers, rep’s or suppliers etc, and prior to this dismissal he had an unblemished record with the company. The Complainant was never subject to a disciplinary procedure in his 20 years plus with the company. The 4 points raised by Mr Walsh, all occurred between the 27/10/2023 and 13/11/2023. The Complainant lodged a DSAR request and the respondent has not complied with their requirements under GDPR.

It was submitted the Respondent, without warning or notice summoned the Complainant to a meeting, failed to explain the reason for the meeting or its consequences, and read from a document concerns the company had about the Complainant’s performance.  Furthermore, the respondent relied on a number of documents including firstly HR audit carried out the week before and a lack of compliance with regulatory and current legislation was noted, in particular ‘we have the employee information on file but not necessarily uploaded (to the electronic HR system) that we use on a daily basis’. The Complainant stated that the tasks were almost complete. No evidence of any description was put to the Complainant in relation to this matter. The complainant had been told there was no need to send anything in advance. Further, the only conclusion Mr. Walsh came to was ‘the HR audit raised issues that are not complete’. In the circumstances Mr. Walsh could not have legitimately questioned the conduct of the complainant, as there was no specific act of gross insubordination put to him.

No evidence of failures to have emergency contact details was put to the Complainant, no prejudice or detriment to the respondent was shown and no act of gross insubordination was noted, simply a delay in getting information and therefore, Mr. Walsh could not have concluded this amounted to gross misconduct.

No evidence of any description was put to the Complainant in relation to work visas matter. Further, no damage or prejudice to the company was evidenced by Mr. Walsh. In fact, Mr. Walsh having considered the matter at the hearing concluded ‘the non-renewal of employees Visa’s is a very serious matter and potentially exposes the business’ . Mr. Walsh admits in this line there was no exposure, and therefore, could not properly conclude an act of ‘gross insubordination and/or continuing refusal to carry out legitimate instructions’ had occurred. In fact the complainant explained that no staff issues arose from the issue.

No evidence of any description was put to the Complainant regarding an alleged four issue of a comment made by the complainant to Mr Roche. The comment was never stated at any stage in the meeting or thereafter. In circumstances, where Mr. Walsh was not aware of the specifics of the comment, or could repeat the comment during or subsequent to the meeting, he was not in a position to make any finding in respect of conduct. Further it is noted that the Respondent summarily dismissed the Complainant, on foot of its alleged concerns and without an honest and fair investigation into the matter.

It is clear, that prior to the meeting commencing, the Respondent had made its mind up about dismissing the complainant with no evidence produced by the Respondent, no notice of the meeting or the consequences arising out of the meeting for the complainant were given, no investigation was carried out, no proper interview of the employee was conducted, and no proper consideration of the matters was made by Mr. Walsh. In the circumstances the Respondent did not carry out a fair and honest investigation.

The defence provided for under Section 6 (4) of the Act is not available to the Respondent and the respondent must behave as another reasonable employer would have done in the circumstance. It was submitted the Complainant’s alleged behaviour was of such a nature that it didn’t warrant a dismissal in the first instance. Mr. Walsh had no evidence of any description to confirm that the Complainant had actually carried out any acts as alleged. Mr. Walsh sought a meeting with Complainant to address ‘concerns regarding his performance’, which were based on a two-page document with no evidence attached thereto. Mr. Walsh also took 6 minutes to decide to dismiss the Complainant and refused to allow him to properly respond to the ‘concerns. Given the contents of the notes, the manner in which the Respondent conducted the meeting, which was an effective ambush of the Complainant, the lack of supporting evidence, the speed with which he dismissed the Complainant’s short responses, the lack of notice to the respondent and the fact no right to representation was given, it is clear the Respondent did not behave in a reasonable manner, and the dismissal was unfair.

No investigation of facts occurred prior to the meeting. The employer jumped straight to the disciplinary meeting based on unsupported verbal statements, without investigation or any evidence. An employee must be informed of all the allegations against them, and all the relevant documentation and be given an opportunity to defend themselves or provide an explanation.  The Complainant was, for the first time, during the meeting, informed of concerns the Respondent had about his behaviour and no notice was given that it was a disciplinary meeting, and no notice was given regarding the consequences of the meeting. No documentary information or evidence was furnished, full replies were expected immediately, and when the Complainant sought to expand on his responses he was shut down, thus denying him an opportunity to defend or provide an explanation.  Representation is a fundamental right of an employee at an investigation or disciplinary meeting and this was not provided at this meeting.

The employer own disciplinary rules and procedures provides for

‘the rules set standards of performance and behaviour…..it is our aim that the rules and procedures should emphasis and encourage improvement in the conduct of individuals, where they are failing to meet the required stands, and not be a means of punishment’

And that....’every effort will be made to ensure that any action taken under this procedure is fair, with you being given the opportunity to state your case and appeal against any decision….’

It also provide ‘you are fully aware of the correct procedure, the standards of performance, action and behaviour required of you’.

 And that where there is a necessity to conduct an investigation meeting to clarify a particular incident “the facts established in an investigation meeting may be used to identify whether or not a formal disciplinary hearing ought to be conducted;’

Para 4 (h) ‘ you will only be disciplined after careful consideration of the facts and the opportunity to present your side of the case at the disciplinary hearing; Para 4 (i) ‘if you are disciplined, you will receive an explanation of the penalty imposed and you will have the right to appeal;

The respondent failed to follow their rules and code of practice and failed to carry out an investigation in the concerns; never examined any “concerns” , was never furnished with any information or evidence, prior to, during or after the investigation, was never given notice of the disciplinary meeting; never offered their right to representation; never afforded their right to cross examine any alleged witnesses or question the facts; never received a fair or impartial determination; never received explanation of the penalty received;.  There were breaches of the S.I 146/2000 Code of Practice on Grievance and Disciplinary Procedures and failures to deal with the manner in a fair and reasoned manner. The Complainant was denied his right to natural justice and fair procedures, thus again rendering the dismissal unfair. A key fact in this case, and one which has been conceded by the Respondent, is that there was not a scintilla of procedural fairness in the manner in which the Complainant was dismissed from employment.

The Complainant was earning €2,340 gross a fortnight i.e. €60,840 per annum which was €775.21 nett and the complainant’s financial loss is ongoing and he has secured employment earning currently weekly nett €461.79.  The Complainant had a company car, worth €44,000 which was removed, and loss of the Insurance in the sum of €559 per year and Tax in the sum of €270 paid by the respondent and the loss of BIK and the claimant was in receipt of €500 pension contribution per months as well as mobile phone.   The Complainant unsuccessfully tried on multiple occasions to re-engage with employment on numerous occasions and secured employment on 20/06/2024 with an employer.  The complainant respectively requests the adjudicator determine that the complainant was unfairly dismissed And award the maximum sum, in particular given the egregious breach of the Act, and the Code of practice.  Details of job applications were provided and the complainant secured a position on 20/06/2024 in an administrative role and had been unable to secure another position as a HR manager and had made significant efforts to mitigate his loss.

Case law cited included Adbullah -v- Tesco Ireland plc Frizelle -v- New Ross Credit Union Lid  MPSTOR Limited v William Oppermann UDD2133, Hennessy v Read & Write Shop Ltd UD 192/1978, Bunyan v United Dominions Trust [[1982] IRLM 404] Nuade V University College Cork, April 8 2024, ADJ-0042635, Pacelli v Irish Distillers Ltd (UD 2006/417) Bank of Ireland v Reilly 2015 IEHC241, Harris -v- PV Doyle Hotels Vanfleet Transport Limited -v- Mark Murphy (25th November 1998). HC, Gearon v Dunnes Stores Limited, 5 Harris v PV Doyle Hotels UD 150/1978 6 Moran v Bailey Gibson Limited UD 69/1977 7 Gearon v Dunnes Stores Limited UD 367/1988 11, Anthony Kennedy v Total Tiles Limited Italian Tile and Stone ADJ-00028110, Waterford health Park Pharmacy Limited t/a stratus Healthcare -v- Aoife Foley UDD2412.

Evidence of Mr John Gannon Complainant:

Mr Gannon said he was employed when he was younger and while in college with the respondent and had a diploma in hotel management and a degree in HR.  There was a change in directors and Mr Walsh was in charge of the Hotel until a general manager came Mr Hynes took on the role.  It was a paper-based HR system and then the electronic HR system came in which was used in tandem with the paper system and it holds records and lets you update training and all management can access it.  Mr Gannon had no issues with working with Mr Walsh. 

On 14/11/2023 Mr Hynes came into his office and said Ronan Walsh is here and we need to talk to you immediately and then Mr Walsh read a 2 page document and raised issues about a HR audit about next of kin information and a comment Mr Gannon was supposed to have said about Mr Roche and raised matters about work visas.  Mr Gannon was asked if tasks were completed from the audit and Mr Gannon replied that it was nearly finished.  Mr Walshe asked about delays contacting next of kin of an employee and Mr Gannon explained that it took 2 mins to provide the details to Mr Hynes.  He was not given a copy of the audit and no issues about the audit were raised or put to him and he only saw details about the audit from Ms Frak when the WRC hearing was coming up and the respondent submitted papers.  All employee information was available between the paper files and the electronic file. 

After the four issues were put to Mr Gannon he was told to get a coffee and come back and was then told he was dismissed immediately and he was told there were breaches.  Mr Gannon asked could he respond and Mr Walsh said that Mr Gannon had his time to talk and it was now Mr Walsh’s turn and Mr Walsh would not let him respond.  Mr Hynes then escorted him out of the office and he was told he could appeal and could get the notes.  None of these issues had ever been raised with him and no facts ever put to him.  Mr Hynes had approached Mr Gannon at 08:55 and the meeting started 09:08 and then he was told to get a coffee and 3/4 minutes called back in again and there was no offer of representation and Mr Hynes was the note taker and Mr Gannon lodged an appeal. 

Mr Gannon was told he could bring a witness to the appeal and would be paid from 14/11/23 until the appeal date and met Mr Reynolds in Dublin and there was a stenographer present taking the notes and Mr Reynolds had papers and said they would go over 4 points.  Mr Reynolds seemed to rely on a  2 page document and Mr Gannon did not know if Mr Reynolds had the HR audit with him and Mr Reynolds did not have the witness statement or he did not put them to Mr Gannon but he might have had them.

Mr Gannon got an email from Ms Frak on 01/11 about the audit and the audit was rescheduled and she was asked if he needed anything and there was a chat at reception when she came to the hotel and they started populating an excel spreadsheet and updating information in it and they talked about employees who were under 18 and Sunday premium and Ms Frak was told it was a paper system and the electronic system was also used.  He refuted that he was not helpful and he was 100% responsive and he asked Ms Frak did she want him to change things but there was no standard operating procedure for the audit.  He did not see it as disrespectful to refer to her as the ‘girl’.  There was no issue making her administrator and he had nothing to hide and she did not contact him after the audit.  None of the issues raised in the audit were ever put to him.  With regards to her claim that no information was prepared he said everything was there and there was nothing needed to be prepared for.  With regards to her claim about missing information he said that all employees fill an employer starter form which goes to payroll. 

Payroll and the electronic system are not connected and the starter form is paper and the starter form is not on the electronic system.  Some employees who had visas did not want to renew their visa and another employee at the hotel was able to work because his wife was Irish.  At the time of the audit everybody had an appropriate visa and he denied he ever said that you could plead ignorance regarding failures to review a visa.  Mr Gannon said he had spoken to Mr Hynes about visas that were either coming to an end or coming up for renewal and he was satisfied that there would be sufficient cover if people left. 

The second allegation was that he did not talk to employee about visas when asked to do so and Mr Gannon said he did and he did not think he had to speak to them immediately but had spoken to them regularly about the visas and there is a grace period allowed.  He had told Ms Frak that not all employees signed a contract but that he had followed up with a letter to them about contracts and he had asked Ms Frak’s prospective on this.  The handbook is issued through the electronic system and there is a ‘read receipt’ from that. 

The third issue was the emergency contact information for the file.  The call for the emergency contact came at 16:16 and Mr Gannon sent the information at 16:22 and Mr Gannon did not receive any complaint about this. 

The fourth issue was about the inappropriate comment to Mr Roche and Mr Roche had requested a meeting with Mr Gannon in October to discuss something with him and Mr Roche said to Mr Gannon that a comment about a mirror reminded him of his divorce and Mr Gannon was surprised  and did not want to cause upset but could not understand why a mention of a wire referred to divorce.  Mr Roche had talked about the wire and said that they fixed the wire and Mr Gannon said “you and your wire” and it was a casual comment.  He had been friends for 25 years with Mr Roche and he did not see that Mr Roche was upset and Mr Gannon apologised for causing him upset.  Mr Roche’s divorce had not been recent and was not on Mr Gannon’s mind when he made the comment and none of the other statements from employees about this incident were ever put to Mr Gannon.  Mr Reynolds seemed to agree with Mr Gannon and did not have details of the exact comment in front of him and could not understand why a comment about a wire referred to divorce.

At the appeal the matter of Mr X taking the case to the WRC also came up.  Mr Hynes and Mr Walsh were fully aware of it and decided to terminate Mr X’s employment and Mr Gannon recalled saying they needed to follow procedure with Mr X and Mr Hynes dictated all the correspondence and Mr Gannon was told to offer Mr X €4,000 to settle the claim.  The respondent would have been aware of this WRC case 02.  Mr Hynes had full knowledge of Mr X and Mr Gannon did not get any of the WRC documentation.  There was also reference made about sponsorship of a local soccer club but Mr Gannon had not agreed to sponsor the club.  Mr Gannon had told Mr Hynes that a soccer club were looking for sponsorship and asked for a quote for soccer kit and it was sent to Mr Hynes and nothing had been ordered. 

There was also allegation made to Mr Gannon about an IT issue and Mr Gannon had asked for Gmail account to be transferred over but it had not happened.  At the end of the appeal Mr Reynolds shook Mr Gannon’s hands and said he would make a decision and Mr Gannon got the decision on 28/11/23 with an email and nothing further came about it and Mr Gannon got the minutes of the meeting with the respondent’s submission prior to the WRC hearing and an email on 01/12/2023 saying salary would not be paid after 14/11/2023 and Mr Gannon was therefore, dismissed effective 14/11/23.  The company car was not issued after 06/12/2023  and he could not use the phone number on his phone.  He applied for some positions within the hotel industry which is a small sector and got a job temporarily on 20/06/2024 and that has been extended and is at an Administrative Level.  The complainant has applied for many positions across various sectors.

Cross Examination of Mr John Gannon

Under Cross Examination Mr Gannon said he had a fair appeal hearing  and he could have gone to a solicitor and that Mr Reynolds did not attach importance to the matter of the soccer sponsorship and that it was about the matter of Mr X and the use of his Gmail that was focussed on at the appeal.   Mr Reynolds was helpful and Mr Gannon said Mr Roche was a good witness but not an honest witness with regards to this case as the comments Mr Roche made were fabricated.  Mr Gannon said the matters were serious if they were correct and that he thought Mr Roche faked his upset and that he was puzzled by all the matters that had happened over the last few months.  He had no issues with management or from management and that up to the HR audit he had got on well with staff.  He noticed a change in Mr Walsh towards him as Mr Walsh had stopped calling to Mr Gannon’s office and  Mr Gannon brought Ms Fak to the open plan office on the instruction of Mr Hynes and the most serious HR matter on his desk in October 2023 was the case of Mr X and has no reason to doubt that Ms Frak is an experienced HR person.   Mr Gannon did not take up the offer from the respondent to do a Masters in HR as he would have had to make up the time off.  He did not mention Mr X to Ms Frak as he had assumed that Mr Hynes or Mr Roche had said it.  The use of the word ‘girl’ was an innocent phase and it was not used in a derogatory manner.  Ms Frak did not ask for full access to the system and Mr Gannon denied he did not want Ms Frak to have access to the full system.  There was ample time for him to prepare for the audit and said he took the audit seriously and thought he might learn something from it. 

There had been a meeting in October 2022 about Mr X which Mr Hynes and Mr Roche were aware off and Mr Hynes had said €€4,000 should be offered to Mr X to settle the matter.  He could not comment on whether Mr Roche put on the tears and said Mr Roche looked visibly upset and said that when Mr Roche cried about the matter in October 2023 Mr Gannon thought it was genuine and that he was helping Mr Roche through his divorce and that if he came across a serious issue he would do an investigation and disciplinary.  He referred to Mr Roche and his wire and that he was not fully prepared for the appeal and felt very upset and in disbelief at the dismissal and would not accept that his memory is not good and that he has his confidence back and has brought notes on the respondent’s submission.  He said that Mr Reynolds did not hand Mr Gannon any notes during the appeal meeting and denied that he gave false evidence earlier and said he had answered to the best of his knowledge and there was no intention to mislead and that Mr Reynolds went through 4 points at the appeal and Mr Reynolds asked Mr Gannon if he wanted to add anything and that Mr Gannon did not write to Mr Reynolds after the appeal to add anything else. 

Ms Gannon declined the opportunity at the dismissal meeting to have Mr Hynes read back the notes.  Mr Gannon said that Mr X was not treated well as he had no appeal to his dismissal and said that Mr Hynes and Mr Walsh knew about Mr X and that between Mr Hynes and the external consultancy firm they were combining information for Mr X’s case in front of the WRC.  Mr Gannon could not recall what he told Mr Reynolds about the case to do with Mr X and did not know if he told Mr Reynolds that Mr Hynes crafted the letters for the case of Mr X and accepted that there was no reference to Mr Hynes crafting a letter in the stenographer’s transcript of the appeal meeting. 

Mr Gannon said he found it unbelievable that you could claim ignorance with regards to visas and believes in following procedures and said he could not remember saying about claiming ignorance of visas and said he did not say those words and that benefit in kind for the car was paid by the respondent.  At the time he believed he got a fair hearing from Mr Reynolds and he told Mr Walsh that the company had to follow procedure regarding the termination of Mr X and that he was overruled.  Before his employment was terminated the most important hr matter on his desk was the matter regarding Mr X and he never mentioned this to Ms Frak but Mr Hynes aware of it and that referring to Ms Frak as a ‘girl’ was a Galway phrase and he denied that there was any intent meant in referring to her as “girl”.  He could not recall why he typed three exclamation marks in the email when he referred to her as a girl and denied that he did not want to give her access to the system.  He said Mr X was a barman and was on annual leave at the time of his dismissal and was having a medical check-up overseas.  Mr Gannon understood the seriousness of making allegations that witnesses were lying and that this would mean they are perjuring themselves at the WRC hearing and he had no regret about saying what he said.  Mr Gannon denied Mr Roche was relying on Mr Gannon for help during his divorce as he believed Mr Roche had good help around him.  There were four managers present at reception when the comment was made and two other employees and Mr Gannon said he can only go on what he believed was the truth as to what happened and none of the witnesses could say what the actual comment was that he was supposed to have said and denied that he referenced Mr Roche’s divorce and understood that the word ‘wire’ could infer sexual manner.  There was no reference in the stenographer transcript to the €4,000 to Mr X and denied that he said the company could plead ignorance.  He believed hiss nett monthly was €2,133.81.

Mr Gannon said he did not prepare for the audit as he was awaiting to see what its results would be.  He has terminated less than 10 people during his employment and has issued disciplinary actions of maybe 2 or 3 per annum and he was surprised that Mr Reynolds introduced new matters into the appeal as it was not the norm.

This complaint required a lengthy hearing over 8 days and, therefore whilst not referencing every submission or evidence I have taken the necessary time to carefully review all submissions and evidence both written and oral and noted the respective positions of the parties.   It is not required of me to provide a line for line rebuttal of the evidence and submissions that are rejected or found superfluous to the main findings. It is required of me to set out ‘such evidential material which is fundamentally relevant to the decision’ (Nano Nagle School v Daly [2019] IESC 6).  It is also not for me to substitute my own judgment as to whether the dismissal was reasonable, the question is whether the decision falls within a range of reasonable responses of a reasonable employer.  My role, having heard and carefully considered the Parties’ written submissions, the oral evidence adduced and the supporting documentation relied on by them, is to determine whether or not the Respondent has established substantial grounds to dismiss the Complainant and followed fair and reasonable procedures in arriving at the decision they made to dismiss him in fulfilling its statutory obligation.  It is also necessary to assess whether the sanction of dismissal was proportionate taking into consideration all of the circumstances and under the Act, the burden of proof rests on the Respondent.

Preliminary Issue:

The Complainant issued proceedings against two companies, one against Foxfield Inns DAC (ADJ-00049906) and this instant complaint against Foxfield Imperial Limited(Adj-00049863).  The complainant submits that both companies were solvent and that the complainant’s contract is under Foxfield Inns DAC, that those who dismissed the complainant are employed by Foxfield Inns DAC and the complainant was paid by Foxfield Imperial Limited.  The respondent submits both respondents are solvent.

The contract of employment sets out that the complainant is employed by Foxfield Inns DAC t/a Imperial Hotel and refers to the complainant commencing employment on 09/06/2003 and the contract is signed by Mr Gannon on 03/05/2021.  The complainant’s pay slips sets out that the complainant is paid by Foxfield Imperial Limited.  I note Mr Gabriel Reynolds evidence when reading through the appeals transcript had put to the complainant “Could I, just for the record, say that in November 2022 you were employed by Foxfield Imperial Limited; isn’t that correct?” and Mr Gannon confirmed “yes”.  Mr Ronan Walsh who communicated the decision has set out in his email signature that he is Managing Director of Foxfield Inns DAC, Ashling Hotel and Imperial Hotel Galway and his attachment in an email he sent, uses headed paper of Imperial Hotel Galway.  Mr Reynolds who communicated the decision to uphold the dismissal has in his email signature that his is the Office of the Chief Executive Foxfield Inns DAC.

S 1 of the 1977 Act defines an “employer”,

in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment…”

Taking into consideration all the submissions and evidence and that as set out UDD2133 MPSTOR Limited V William Oppermann

“The Act defines the employer as the person who the employee has a contract of employment”

and in this instant case the contract of employment state that the complainant was employed by Foxfield Inns DAC  and I find that the correct named respondent is Foxfield Inns DAC .

I find therefore the instant respondent name Foxfield Imperial Limited is notthe correct named respondent and I do not have jurisdiction to hear this complaint.

I find that the named respondent is not the correct respondent in the complaint and I do not have jurisdiction to hear the substantive matter.

Unfair dismissal, date of dismissal, correct respondent, mitigation, nett, gross, contribution to dismissal, lack of fair procedures.