ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00055247

Parties:

Complaints:

Dates of Adjudication Hearings:  21/052025, 23/072025, 04/02/2026 and 25/03/2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was dismissed following a food hygiene audit of the site in which he was a Manager.

Summary of Respondent’s Case:

The Complainant was employed by the Respondent since June 2003 and was appointed as Site Director circa 2016.  He was suspended from work on 16 July 2024 and his employment was terminated on 29 October 2024.

He lodged a number of complaints and it is noted that the only remaining claim is for  unfair dismissal.

The complainant’s site was due for a normal food review on 11 July 2024. This review is called ‘perfect day’ and is designed to assess a large number of criteria around sale of food to the public.  Following this inspection, a considerable number of issues emerged and the complainant was asked to remediate them.  On 13 July 2024 a further inspection was carried out by Ms C, Technical Food Manager, who was dissatisfied to the extent that the Deli area was ordered to be closed.  Following this, Regional Manager Mr D telephoned the complainant and told him to roster extra staff for the following days/shifts so that the highlighted  areas could be rectified for a follow up inspection on 15 July 2024.   The complainant failed to do this and the inspection carried out on 15 July resulted in the Bakewell area remaining closed. 

The complainant was suspended on 16 July 2024 on the basis of the poor outcome of the ‘perfect day’ audit on the food safety elements.

It is submitted that the Respondent was perfectly entitled to suspend the employee in circumstances where there were serious problems regarding food safety and potential endangerment to the health of the public.  The employee handbook allows for suspension.

The Respondent made a number of attempts to have the complainant attend a fact finding meeting, however the complainant ignored the letters.  A fact finding meeting went ahead without his presence on 15 August 2024 [sic].  The complainant was issued with the outcome of the fact finding investigation meeting, where the Regional Manager Mr D decided to proceed with a disciplinary hearing.  This took place on 27 August with another Regional Manager Mr R.  It is submitted that the employee handbook deals with “sanction” as depending on the seriousness of the issue, sanction up to and including dismissal may be invoked.

The outcome of the disciplinary hearing was issued to the complainant on 30 August 2024.  The letter stated that the complainant had failed to maintain food standards and knowingly traded in unsafe food, noting that there were 33 non conformances in the Deli area.  It was noted that the cleaning he delegated was not sufficient but he tried nonetheless.  Because of the complainant’s long service it was decided that he would be issued with a final written warning and be demoted to another site.   It was noted that with some retraining, the Complainant could return to the original Site Manager position.

The company had an entitlement to demote and issue a final written warning in lieu of dismissal.

The Complainant was afforded the right of appeal which he did not take up.  In fact with the exception of one email on 9 September 2024, the Complainant did not engage with or respond to his employer’s communications.

Following the issuing of the outcome of the first fact finding and disciplinary process, a second fact finding and disciplinary process was carried out.  This was conducted in the absence of the Complainant who failed to answer any emails sent to him by the HR Manager.  The Complainant was given further latitude when the company extended the time for the complainant to attend, however he failed to do so.  In the circumstances where the disciplinary meeting was sought, and the complainant failed to attend, a letter of dismissal was sent to the complainant by the Regional Manager.

It is submitted that the investigation and disciplinary process gave rise to a demotion and final written warning.  The complainant had the option of appealing the sanction but chose not to do so.   The complainant did not engage with his employer and over a period of six weeks, correspondence was exchanged by the solicitors for both parties.  It is submitted that the complainant had an obligation to engage with his employer whether he agreed with the process or sanction or not.  An employer cannot be expected to manage a business where employees unilaterally refuse to engage with the process at all.  More significantly, where the complainant was on a final written warning the respondent was entitled to dismiss and the dismissal was fair and proportionate.

Sworn evidence was given by 4 Managers. 

The HR Manager gave evidence of her dealings with the Complainant especially during September 2024.  She advised him of the initial sanction of re-location and position as Store Manager in a different location.  He said “I don’t accept the company’s decision”.   She confirmed that it was the intention of the company to re-train him and then consider a move back to his position.         

The Regional Manager who originally suspended the Complainant gave evidence that following a ‘perfect day’ audit which found hygiene non compliance and a subsequent visit from the Food Safety Manager, there was a necessity to suspend the Complainant.  There was a real danger to public health.  When he met with the Complainant on 15 August 2024, the Complainant admitted the significant shortcomings but blamed the situation on staff.  The Manager stated that if he was short staffed he should have recruited for example, an Assistant Manager.  He stated that Site Managers were responsible for recruiting their own staff.  On 20 August 2024 the Manager issued a letter to the Complainant confirming that he was being invited to a disciplinary meeting regarding his failure to fulfil his duties as Site Manager in respect of food safety, brand standards, company reputation and team management.  This meeting was to be conducted by another Regional Manager.

The Food Safety Manager gave evidence of observing a long list of issues which gave serious concern so that the specific operations had to close due to unsafe and unclean areas. 

The Regional Manager who conducted the disciplinary meeting on 27 August 2024 gave evidence in relation to the disciplinary meeting.  He confirmed that the gross negligence of the Complainant in maintaining standards was in effect gross misconduct and could have led to dismissal however as the Complainant’s long service was taken into account the decision was to “re-set” and re-focus on what was expected of the complainant.

Summary of Complainant’s Case:

The Complainant has worked for the Respondent for in excess of 20 years. The complainant was appointed as a Site Director for the Respondent in2016.

Complaints were submitted under the Industrial Relations Act 1969 and under the Organisation of Working Time Act 1997 are withdrawn.  The following complaint is to be considered:

The complaint pursuant to Section 8 of the Unfair Dismissals Act, 1977-2007, that the Complainant was unfairly dismissed.   The Complainant is seeking redress in the form of compensation.

The Complainant performed well during the currency of his employment and was never subject to any adverse disciplinary finding' or sanction prior to the events that culminated in his dismissal.

The Complainant was furnished with the Disciplinary Policy which included inter alia:

Therein, the Respondent notes that "most performance, conduct and behavioural issues may be resolved through informal counselling actions by the employee's immediate Manager."

The Procedure notes that a written record of each meeting will be maintained, which will include details of the employee's case, the response of management and the outcome of the meeting.

The Procedure provides that the employee has the right to be represented at the disciplinary meeting and/or appeal by either a work colleague but not any other person or body unconnected with the Company.

The Disciplinary Procedure goes on to distinguish between informal and formal disciplinary procedure, noting that:

"In the case of minor day-to-day infringements of policies or rules, or when standards of performance, conduct or behaviour fall below or fail to reach an acceptable level, an informal discussion between the employee and his/her immediate Manager will normally be sufficient. The Manager will give guidance on improvements. This intervention is to be viewed as a counselling session and the Manager will keep a record of the discussion and the agreed actions."

"If the employee's performance, conduct or behaviour continues to be unacceptable, or is of such a serious nature that the informal disciplinary procedure is inappropriate in the circumstances, the formal stage of the disciplinary process will be invoked."

The Procedure provides for fact-finding investigations which can include reviewing relevant documents, interviewing the employee and any witnesses and taking witness statements.

It further states that it may sometimes be necessary to suspend an employee, but confirms that "an explanation will be given to the employee as to why suspension is considered necessary. "

It states that during the suspension, the employee should not visit the Company premises or contact any of the Company's customers, suppliers, contractors or employees, unless they have been expressly authorised to do so.

The Disciplinary Procedure provides for four levels of disciplinary sanction as follows: Level I - Formal Verbal Warning, Level 2 - Formal Written Warning, Level 3 - Final Written Warning and Level4 – Dismissal.

Since appointment of a new area manager, (AH) in March 2023, the Complainant was told by colleagues that AH did not like the Complainant and was disgruntled that the Complainant received the position in the site instead of him- The Complainant and AH have not been on speaking terms since they had a disagreement in or about 2020 in relation to a staff transfer, in circumstances where one of his team members voluntarily joined the Complainant's team. AH took issue with this.

Since his appointment as Area Manager, AH Regularly relied on formal audit procedures to point out minor mistakes and did not invoke the informal counselling sessions as provided for in the Respondent's disciplinary procedure. On a number of occasions, the Complainant asked AH to let him know if there are any improvements he could make, to ensure employer satisfaction, and he was told that he would not "babysit" the Complainant. The Complainant has worked under ten other Area Managers during his employment with the Respondent and never had any difficulties in this regard.

The Complainant formed a view that AH had formed a predetermined view of him and was causing others in the role to do the same. On a number of occasions, the Complainant was told by the Head of Operations that AH told her that he was not receptive to feedback, despite never him providing any feedback. The Complainant has always been very receptive and willing to improve on any issues raised.

In June 2023, the Complainant was issued with a PIP (Performance Improvement Plan) without due process or counselling and asked would he like to move site.  He said he did not want to move site.

There was a resourcing problem which the Complainant brought to the attention of the Regional Manager.  The Assistant Manager could not attend to her duties as she had to train in other staff.

The Complainant has never failed food safety internal or external visits, including those from the Environmental Health Office and EcoSure.

The audit resulting in the suspension of the Complainant was an internal company visit. The Complainant was subject to an external food audit, which did not find any serious issues.

In April 2024, SD, took over as Regional Manager. The Complainant sensed immediate hostility and similar experiences of receiving no feedback or informal counselling. There were a number of audits carried out by him, but the reports were never shared with the Complainant and audits were often carried out in the Complainant's absence, despite them being aware of his work schedule.

The PIP in June 2023 related to a standard audit conducted a year and a month prior focusing on cleanliness, attention to detail, missing SEL, Items, product placement and signage. The Complainant addressed these concerns immediately and shared pictures as evidence. However, there was no follow up. The Complainant had not had a performance review for the last two to three years. The Complainant had completed forms when requested, but there were no scheduled meetings for review.

The Complainant was experiencing difficulties carrying out his tasks and obligations due to staffing and resourcing difficulties and failure on behalf of the Respondent, its servants or agents from rectifying the situation, despite numerous requests.

On 2l June 2024, the Complainant was required to terminate the contract of his Assistant Manager due to gross misconduct. The Complainant asked the Area Manager (Regional) to post job ads or suggest someone for the role. He told the Complainant not to post an ad and told him that the Area Manager (Regional) had two potential candidates. The position was never filled. The Complainant followed up several times but was told there were no updates.

On 11 July 2024, the Respondent carried out a visit called the "Perfect Day" conducted by RM, Head of Operations and the Head of the Food Department. On this particular day, the Complainant had no Assistant Manager and his Food Manager was on annual leave. Following the review, the Head of Operations told the Complainant that she did not trust him to run the site.

After the "Perfect Day" was completed, the Complainant asked the Area Manager (Regional) again about finding replacement staff and the Complainant was permitted to post an ad for an Assistant Manager.

On 13 July at noon, a representative from Head Office visited to inspect the site. The Complainant explained that while some areas had been improved, he had scheduled a deep clean that afternoon. She was dissatisfied and requested that the deli area be closed for cleaning.

On evening the 12,13 and 14 July the entire team cleaned the area with the Complainant. On Monday, 15 July, the Food Area Manager inspected the site. There were some areas she noted needed further cleaning. The Complainant addressed these issues immediately and sent the Area Manager photographs as requested. The Respondent confirmed this was in order the deli was permitted to reopen the following day.

On l6 July, the Area Manger contacted the Complainant in the afternoon to confirm he was on his way to the site. He handed the Complainant a letter confirming his suspension. The letter did not confirm a period of suspension. The Complainant was shocked and upset by this and asked whether he was going to be fired and whether it would adversely affect future job prospects. The Area Manager confirmed that it probably would at that stage.

In the absence of a Food Manager and a Deli Manager, the Complainant worked for the entire weekend from the 12-14 July to rectify the issues raised by the Respondent, despite significant resourcing issues. Following a further inspection by the Food Area Manager, she confirmed she was satisfied same was in order. Despite the Complainants efforts, he was suspended from work without any verbal or written warning, which flies in the face of the Respondent's disciplinary policy.

The Complainant received a Notice of Paid Suspension from the Respondent on the 16th July 2024, stating that he was being placed on paid suspension effective immediately following the recent "Perfect Day Audit" conducted at his place of employment. The letter stated that "This decision has been made in light of the standards identified during the audit, which require further investigation and resolution."

The letter further prohibited him from attending work-related events, in particular he was not permitted to attend a Charity Cycle event scheduled that week, which the Respondent company had actively encouraged the Complainant to collect monies from third parties for. This caused irreparable reputational damage to the Complainant. It is submitted that this was not necessary as part of the Disciplinary Procedure and was done in an effort to embarrass the Complainant. The Respondent accepted €2,000 raised by the Complainant for the charity and then prohibited him from attending the event in a public place. The Complainant was very hurt and upset by this and had been training for months in his spare time for this event.

The Complainant heard nothing further from the Respondent until he received a letter titled "Notice of Fact-Finding Investigation Meeting" on the 29 July 2024 requiring him to attend a fact-finding meeting on the 30 July 2024. The letter stated that it was not a disciplinary hearing but the outcome of the investigation would decide whether or not to initiate the disciplinary process. It stated "Please note that photographs will be used in the investigation. " Said photographs were not furnished to the Complainant.

On the 30 July 2024, the Complainant's Solicitor wrote to the Respondent noting that the Company was in breach of its own policy in that the primary objective of the Disciplinary Policy is to "ensure that the disciplinary procedure is based on the philosophy of discouraging and correcting unacceptable conduct, unsatisfactory performance or breach of company policies at the earliest stage and actively involving the employee through the process."

The Respondent failed to outline what the specific alleged breaches of conduct and performance were at issue. Furthermore, the Respondent gave the Complainant less than 24 hours' notice to require him to attend a fact-finding meeting in Dublin. The Complainant contends that this was done contrary to policy of fair procedures and was done by the Respondent in an attempt to ambush him.

Despite stating that the meeting was not a disciplinary hearing, on the 1 I July 2024,the Head of Operations told the Complainant that she did not trust him to run the site. The Complainant maintains that it is apparent that the Respondent had already determined that the outcome prior to any investigative or disciplinary proceedings having commenced. As such, the Complainant maintains that the entire matter was predetermined and irretrievably flawed and unfair as a consequence.

Correspondence was exchanged between the solicitors for the Complainant and the Respondent with the Complainant’s solicitor asking on 8 August why the Complainant was still on suspension. 

A fact finding meeting was held on the 19th August 2024 by SD. The Complainant was questioned for two hours and forty-five minutes, with a fifteen minute break. SD was not an impartial person for this purpose, for reasons outlined above. At all times during this meeting, the Complainant re-iterated the staffing difficulties, matters which he had attempted to raise on numerous occasions with SD in the weeks leading up to the Perfect Day. The interviewer did not engage in this and lay all blame for all of the issues on the Complainant. The Complainant also noted during this meeting that the decision to suspend him for two weeks was unfair and he highlights that he wasn't well as a result. He noted his embarrassment and the fact that customers and other staff of the Respondent were asking where he was and telling him that they were "getting rid of me". On numerous occasions SD dismissed issues raised by the Complainant during the meeting.

On 21 August 2024, the Respondent wrote to the Complainant concluding that following the fact finding meeting it had been decided that the disciplinary process should be initiated on the "alleged failure to fulfil duties of Site Manager in relation to food safety, brand standards, company reputation and team management" and required him to attend a disciplinary meeting on 27 August 2024. It was noted that he was entitled to be represented in the meeting by a work colleague only.

The Disciplinary meeting was held on the 27th August 2024 by AR. The Complainant noted that SD told him he could only bring a staff member with him to the meeting. It is submitted that this is tantamount to a refusal of representation in circumstances where the Complainant holds a senior position at the Respondent Company, and it would be wholly damaging to his reputation were he to bring them to a meeting. He requested to bring a friend and this was refused.

The Complainant asked to record the meeting, noting that things were missed from the notes of the investigative meeting and this request was refused without a reason. It is submitted that this is a fatal flaw in fair procedures where the Complainant was effectively refused the right to have representation and then refused his reasonable request to record the interview to ensure accuracy of notes.

On 30 August 2024, the Complainant received correspondence from the Respondent attaching copy minutes from meeting of disciplinary hearing, outlining the issues discussed in the meet and setting out their conclusion. Following the meeting the Regional Manager, AR concluded that the Complainant seriously failed to manage the site in his role. He noted that the number and seriousness of the failures established during the course of this process could amount to the sanction of dismissal. The letter went on to sanction the Complainant with the following:

1. The issuing of a final written warning;
2. Demotion to Store Manager in another outlet;
3. Retraining in all Food Passport/ brand and shop standards training and Site Manager responsibilities for a period of 6 months.

The letter confirmed that the Complainant's paid suspension would end effective immediately, despite provision for an appeal of the decision.

This letter noted that the Respondent was mindful of his considerable service with the respondent. However, during the investigation, the Complainants strong track record with external audits was not acknowledged and the Respondent did not engage with the problems raised by the Complainant which were beyond his control and contributing to the problem. The Respondent sought to lay blame for all matters on the Complainant and were entirely unreasonable in their handling of all stages of the disciplinary process and in their findings and ultimate termination in employment of the Complainant.

The Complainant does not accept that the appropriate sanction in this instance was dismissal and furthermore, it is not accepted that the alternative suggestion of demotion and relocation was appropriate. Furthermore, it is submitted that given the Complainant's prior interactions with the Respondent's servants or agents it seems to be the case that his relocation was a predetermined and foregone conclusion prior to any fact finding or disciplinary hearing taking place. The Respondent provided no explanation for why the relocation was required or necessary in this instance.

The Respondent threatened and then pursued further disciplinary action against the Complainant, and he was furnished with a notice of fact finding investigation meeting on 27 September 2024 to be held on 3 October 2024.

The Respondent insisted that the Complainant return to work in the circumstances was entirely unreasonable given their complete lack of engagement with the issues and concerns raised by the Complainant. The Complainant was anxious to return to work but wanted consideration of the issues by an impartial and external body. He referred the matter to the WRC with a view to dealing with the dispute. The Complainant ceased engaging with the Respondent in these circumstances. The Respondent's suggestion that he return to work in a demoted position in a different County was entirely untenable.

Despite that fact that the Industrial Relations Dispute being live with the WRC, the Respondent refused to engage in same or with the Complainant's solicitor and proceeded to schedule disciplinary meetings and to terminate his employment. The letter notifying the Complainant of same states that the decision to do so was made on the 22 October 2024. He was not notified of same until the 29 October 2024.

A further meeting was scheduled on the 7 October 2024 and was conducted in the absence of the Complainant. 

LEGAL BASIS FOR CLAIM

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

"subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal."

Section 6(4) of the Unfair Dismissals Act 1977 provides that if an employer can establish that the dismissal resulted from, inter alia, the employee's conduct, it will be deemed a fair dismissal. Section 6(6) of the Unfair Dismissals Act,l97l reads as follows:

" In determining for the purposes of this Act whether or not the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Obligation on Respondent to acl "reasonably" if dismissal to be justified on the basis of employee's "conduct"

It is submitted on behalf of the Complainant that the obligation on an employer (including the Respondent) to itself act reasonably in circumstances where it seeks to rely on the "conduct" of an employee as the justification for dismissal is well summarised in Cox, Corbett & Ryan on Employment Law in lreland (2009, Clarus Press, at Para. 21.72): "...In order to justify a dismissal on the grounds of the employee's conduct, it must be established by the employer that he acted reasonably in dealing with the employee at all times. This would include carrying out a reasonable and proper investigation into the alleged behaviour and drawing a reasonable conclusion from the information unearthed by any such investigation."

Other case law was submitted in relation to fair procedures, right to representation and the conduct of the disciplinary process and sanctions decided.

It is maintained that the sanctions of demotion and relocation were unfairly and incorrectly used to remove the Complainant from his position of employment. It is clear that the investigations had a predetermined conclusion and were not designed to investigate how the Respondent's lack of support was contributing to the problem, and instead sought to lay all blame on the Complainant for a short period of unsatisfactory cleanliness in the Respondent's site, despite over 20 years of excellent track record on the part of the Complainant.

A submission was made regarding remedy, summarised as follows:

When determining what is included within the definition of remuneration is clearly set out in statute. Section 7 provides that redress is calculated by reference to (i) 'Financial Loss' and 'Remuneration.' Defined as follows:

1. "financial loss", in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;
2. "remuneration" includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

This section was considered by Charlton J in the case of JYC Europe Limited v Jerome Panisi in which he described the task of calculating compensation as follows:

 "In assessing compensation, the court should have regard to the implications for dismissal. My task is to assess the financial damage which the dismissol has brought about and then to place the measure of that damage against the maximum amount of compensation that is available. "

The regulations specifically include bonuses and profit share in the calculation of remuneration. Bonuses are regularly included in the calculation of remuneration, including the recent case of A Sales Executive v A Software Company ADJ-27573 (2022)

In this case given the extremely poor treatment of the Complainant and the complete breakdown in communication, re-engagement or re-instatement are not appropriate and the appropriate remedy is compensation.

The Complainant’s solicitor sought maximum compensation to include lost salary, pension benefits, VHI contributions and loss of profits.

The Complainant gave evidence on affirmation summarised as follows:

He stated that he started his job with the Respondent 21 years ago.  He was devoted to the job, worked many long hours and gave up many family events to always be available for the work. (He gave evidence in an emotional manner).

He had even received a long service recognition award in 2024.  Then a few days later the then Manager Mr AH asked him to move site.  He rang HR but got no satisfactory answer except to say “it’s a top management call”.  He knew then that he was not going to be treated fairly.  In the time coming up to the events which led to his suspension and dismissal, his assistant manager was dismissed and the Manager Mr D told him they would get a replacement.  But no replacement was found and this resulted in pressure on him.  He categorically stated that he was told by Mr D not to hire anyone, that he (Mr D) would look after it.

He said he was very upset to receive letters from the Respondent calling him to meetings; one being sent on 29 July 2024 telling him to attend a meeting in Dublin on  30 July 2024, the next day.

He stated his view that the Managers were looking for a reason to fire him. He believed his fate was sealed when the Manager said to him on the first visit that he was not capable of running the site.  Their minds were made up and the decision was already made.  They never asked him about his health and the stress he was under – he was getting migraines during the meetings.  He believed he was treated in an inhumane manner.  The financial impact of losing his job was severe and entailed him using savings he had for retirement.   He made many applications for employment and eventually secured a job in Retail where he is having a successful employment.  He is earning in or around €5,000 less per annum.

Findings and Conclusions:

Initially there were two cases lodged.  The first case was lodged under the Industrial Relations Act 1969 and concerned the referral of the dispute regarding a disciplinary sanction of a final written warning, demotion and relocation of the complainant.  While the Respondent did not lodge an objection to this being heard within the requisite period, they did not agree to engage in that matter and the referral was subsequently withdrawn by the solicitors for the Complainant.  That left the unfair dismissal claim to be heard which is the subject of this decision.  It is noted that while the Respondent did not wish to engage in any process which would consider the matter under the Industrial Relations Act, they adopted contradictory positions, in that they on the one hand submitted that the matter of the disciplinary process and sanction was not up for investigation, they did wish for the sanction of final written warning to be taken into account in considering the fairness of the dismissal. I note also a number of inconsistencies in both submissions in relation to dates of meetings.

There were a number of inconsistencies and conflict of evidence in this case.

For example, I note the conflict of evidence between the parties in relation to matters such as whose job it is to hire a replacement in the circumstances where the Complainant was without an assistant manager.  I note the job description of the Regional Manager states the RM has responsibility to oversee all recruitment.  I note the text between the Complainant and Manager Mr D in which Mr D states “not as yet” when asked by the Complainant for any information on new Assistant Manager position.

In the original submission from the Respondent it was stated that the fact finding investigation meeting went ahead “in the Complainant’s absence” on 15 August 2024 but in fact minutes were provided which showed he was present.  The Complainant’s submission referred to a meeting on 19 August.  The minutes show date as 15 August 2024.

The Respondent suspended the Complainant following an unsatisfactory audit on food safety and hygiene in the outlet.  There is no doubt that the evidence produced was damning in a serious way and the Complainant contributed somewhat to the situation in which he found himself, mainly by blaming others and being unable to accept responsibility for the shortcomings.  However, I note the conflict of evidence about who would be responsible for recruiting for vacancies and I find in that situation, the Complainant was not fully to blame for the shortfall in assistant management to support him.

However, in deciding if a dismissal was unfair, it is not for me to establish the guilt or innocence of the Complainant but rather consider whether the Respondent acted reasonably in the matter of the dismissal.  The test is contained in a number of cases:

The Employment Appeals Tribunal held, in Looney & Co v Looney UD843/1984 that

“It is not for the Tribunal to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate, or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did..to do so would substitute our mind and decision for that of the employer…our responsibility is to consider against the facts what a reasonable employer would have done in the same position..”

In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to gross misconduct:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing.  The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated:

“The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

In this instant case, I base my findings and conclusions on three key questions

 (1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation?

(2) Was there a fair investigation? and

(3) was the penalty proportionate? 

BHS v Burchall [1978] IRLR 379 is also one of the key decisions in Unfair Dismissal cases when considering a dismissal arising from misconduct.  

In that case, the Employment Appeals Tribunal determined that where misconduct is alleged, an employer has to genuinely believe that the employee is guilty, and has to have reasonable grounds for that belief, which must have been reached following a reasonable investigation.  The employer does not have to prove guilt to a criminal standard and does not have to adopt a procedure comparable to a criminal investigation.  Further it was not the role of the Tribunal to consider whether the employee was actually guilty of the alleged misconduct when deciding if the dismissal was fair.  

I find that the evidence adduced from the “perfect day” audit did lead the Respondent to form a belief that the Complainant had been negligent in allowing the standards of hygiene and food safety to be unacceptable.  In relation to a fair investigation, I note the Complainant was called at very short notice to the first meeting and some difficulty did occur in getting him to attend subsequent meetings.  However, I do not find the process undertaken by the Respondent to have been seriously flawed.

In relation to whether the penalty was appropriate or not, I come to a number of findings and conclusion:

I note that the respondent’s disciplinary policy is designed to:

 "ensure that the disciplinary procedure is based on the philosophy of discouraging and correcting unacceptable conduct, unsatisfactory performance or breach of company policies at the earliest stage and actively involving the employee through the process."

The imposition on the Complainant of a demotion and particularly a unilateral transfer to a premises some 66.8 kms away is harsh especially given the long service of the Complainant.  I find that some other penalty such as a written warning and intensive re-training would have been more appropriate.

I find the Complainant has been unfairly dismissed.

In relation to remedy, I find that compensation is the appropriate remedy and re-instatement or re-engagement are not appropriate where the employment relationship is irretrievably broken and the Complainant has moved on to other employment where he states he has been successful.

I note the alternative employment is at a lesser salary and was secured some months after the termination of his employment with the Respondent.

I uphold the complaint and order the Respondent to pay to the Complainant the sum of €18,750 which includes loss of earnings and lost benefits.  

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Based on the reasons and findings above, I find the Complainant’s complaint to be well founded.        I order the Respondent to pay to the Complainant the sum of €18,750 which includes loss of earnings and lost benefits.  

Dated: 25th of May 2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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