Complainant

Respondent

Parties

Peter  O'Flaherty

John Kelly Couriers Ltd

Representatives

Daniel McNamara BL instructed by Donal  Houlihan Solicitors

 John Kelly

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-00068242-001

19/12/2024

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

CA-00068242-002

19/12/2024

The hearing was adjourned on the first occasion as I was not satisfied that the Respondent had been given sufficient notice. Although the Respondent was contacted by the Workplace Relations Commission on the day of the hearing, he advised that he was unable to attend. In the interests of fair procedures, the hearing was therefore adjourned to 13 November 2025.

At the resumed hearing, the Complainant gave evidence on affirmation. He was represented by Daniel McNamara BL instructed by Donal Houlihan Solicitors.

Mr John Kelly on behalf of the Respondent gave evidence on affirmation.

The Complainant commenced full-time employment as a courier with the Respondent on 21 June 2022 signing a contract of employment on the same date. He was paid €15.00 per hour, working 40 hours per week with occasional overtime of around 10 hours. This equated to a gross weekly wage of approximately €690–€700. It was his evidence that on 23 July 2024, the Respondent issued him with immediate notice of termination of employment.

The Complainant, in responding to the Respondent’s evidence, denied all allegations of bad or unsafe driving. He stated that he had worked as a courier for many years, held a clean driving record with no endorsements and only three penalty points, and had never been involved in a road traffic accident. He said no concerns about his driving were ever raised by Mr Kelly, formally or informally.

Any damage to the delivery van was denied and, in the Complainant’s view, amounted to normal wear and tear given the intensity of daily commercial use. He stated that no specific incident was ever identified to him, and no allegation or warning was made at the time.

The Complainant rejected allegations that he was regularly late or failed to attend work, stating that the role operated on a team basis with coordinated start times, making habitual lateness implausible. He accepted being late on one isolated Saturday due to a power cut, which he described as exceptional. He denied any unexplained absences and rejected the suggestion that he treated the role casually.

The Complainant also denied any customer complaints or delivery misconduct. He stated that he carried out secure deliveries to sensitive locations and was never notified of any complaints or performance concerns. Where deliveries could not be completed, he said standard procedure was followed by returning consignments and notifying the office. He confirmed that he was never disciplined, warned, or spoken to, formally or informally, about performance issues during his employment.

Turning to the dismissal itself, the Complainant stated that none of the allegations raised during the phone call of 22 July 2024 had ever been put to him beforehand. He said there was no investigation, no disciplinary meeting, and no opportunity to give his side of the story, and that the decision to dismiss him had already been made. He confirmed that he had been on approved leave immediately beforehand and that he was shocked by the allegations raised on his return. Following his summary dismissal without notice, he said he made extensive efforts to mitigate his loss by seeking work across a wide range of roles, eventually obtaining alternative employment in September 2024 at a lower rate of pay, resulting in ongoing financial loss.

During cross‑examination, it was put to the Complainant that he failed to perform his duties from October 2023 onwards, including missed collections, undelivered consignments, and poor communication. The Complainant rejected these allegations, stating that he was properly trained, performed both morning and evening runs competently, and that any non‑delivery arose from routine operational factors outside his control. He further denied allegations of poor communication, vehicle damage, misuse of the company van, or carrying unauthorised passengers, and confirmed that no such issues were ever raised with him during his employment.

He denied ever transporting his children or any other unauthorised passengers in the van and stated that, had this been an issue, he would have expected it to be raised during his employment.

In relation to mitigation of loss, the Complainant confirmed that following his dismissal he applied for a large number of jobs across various sectors before securing alternative employment in September 2024. Documentary evidence was furnished at the hearing. He explained that while he was able at times to earn similar or higher gross pay, this generally involved substantially longer hours, including seven‑day working. It was his evidence that his current earnings remained lower overall than those he received while employed by the Respondent.

The Respondent operates a courier business in County Kerry. Mr Kelly gave evidence on behalf of the Respondent that the dismissal arose from ongoing and serious performance, conduct, and trust issues involving the Complainant.

Mr Kelly stated from approximately October 2023 to May 2024 there were repeated issues with lateness, failure to report when running late, non-attendance at work without notice, and difficulty contacting the Complainant. He said that communication was frequently poor, with text messages and queries going unanswered.

It was Mr Kelly’s evidence that the company delivery van was used for personal purposes at weekends and during working hours, including collecting children when the Complainant should have been carrying out deliveries. He also stated that the vehicle was observed travelling outside the designated delivery area giving the example of heading towards Limerick at 9:00 am when deliveries should have been taking place in a different location.

Issues with delivery performance, including large consignments being left overnight in the van, delivery dockets not matching consignments delivered, customer complaints regarding behaviour, and a lack of reporting of delivery problems were raised. Mr Kelly said these issues placed the Respondent’s commercial contracts at risk.

Mr Kelly emphasised the importance of trust and safety, stating that he paid substantial insurance costs and required drivers to behave appropriately and operate company vehicles safely on public roads. He gave evidence that, due to the cumulative issues, he no longer trusted the Complainant to operate the company vehicle or to carry out the role reliably.

In relation to May 2024, Mr Kelly stated that the Complainant informed him that a family member had passed away. Mr Kelly said he offered condolences but later became aware that the death was of a friend rather than a family member. He also stated that during this period, when other drivers were on annual leave and cover was requested, the Complainant failed to respond to messages.

Overall, Mr Kelly’s evidence was that the issues persisted for approximately six months, that informal attempts were made to address matters through conversations and text messages, but that the conduct and performance problems continued. He concluded that the breakdown in trust left him with no option but to remove the Complainant from driving duties and employment, as he could no longer rely on Mr O’Flaherty to meet the requirements of the business.

Time was taken by Counsel to take instructions before cross examination.

Under cross‑examination, Mr Kelly maintained that the Complainant’s performance and conduct had been under constant scrutiny for approximately six months prior to dismissal, with issues regularly raised by text message and addressed informally as they arose. He accepted, however, that none of the allegations were set out in a formal disciplinary notice, that no written warnings issued, and that no structured disciplinary investigation took place in accordance with the contractual disciplinary procedure.

Mr Kelly accepted that allegations of poor driving and vehicle damage were not investigated formally and that no warning or sanction was issued to Mr O’Flaherty in respect of those matters. He further accepted that issues concerning misuse of the company vehicle, alleged customer complaints, and other operational concerns were not formally put to the Complainant in writing, nor was the Complainant afforded a specific opportunity to respond to those allegations within a disciplinary framework.

In relation to leave and timing, Mr Kelly accepted that the Complainant had been granted time off following the death of an individual close to him and had also been on approved holidays immediately prior to the dismissal in July 2024. He acknowledged that the Complainant had permission for that leave and that contact occurred only upon the Complainant’s return, including a telephone conversation on or about 22 July 2024. Mr Kelly disputed that this was the first occasion the Complainant became aware of concerns but accepted that no formal meeting or hearing took place before dismissal.

Mr Kelly accepted that the Complainant was summarily dismissed without a formal investigation, without a disciplinary hearing, and without any right of appeal. While he strongly denied that the dismissal was unfair, he conceded that the contractual disciplinary procedure was not fully followed. He justified this on the basis of what he described as serious trust, safety, and operational concerns, stating that he believed immediate action was required and that he no longer trusted the Complainant to drive a company vehicle or continue in the role.

The Unfair Dismissal Act 1977-2015 places a clear burden of proof on the employer to establish that the dismissal of an employee from their employment must be justified.

“6.—(1) 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 Dismissal Act 1977- 2015 sets out the grounds justifying the dismissal:

“(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia,

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”.

McMahon J. in Khan v Health Service Executive 2009 E.L.R. 178, summarised the meaning and value of fair procedures as being:

“… at the very foundation of all legal systems and all decision makers must observe them whether we like it or not. Fair procedures are necessary for the common good … What does fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to. Justice must be seen to be done. Perception is significant.”

The principles of natural justice require that the disciplinary investigation, the decision to impose a sanction (in this case, dismissal), and any subsequent appeal be conducted independently and objectively. An employee is entitled to a fair and impartial determination of the issues under investigation, as outlined in the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) and established case law.

The Complainant was employed by the Respondent as a delivery driver and was summarily dismissed on 23 July 2024. The Respondent relied on alleged performance, conduct, trust, and safety issues extending back to October 2023. It was accepted in evidence that no written warnings were issued, no disciplinary investigation was conducted, no formal disciplinary meeting took place, and no right of appeal was afforded.

The Respondent accepted under cross‑examination that his disciplinary procedures, which formed part of the Complainant’s contract of employment, were not followed.

While it is clear from the Respondent’s evidence that he was frustrated by the Complainant’s conduct. However, the Complainant, denied the allegations. Furthermore, there was no evidence that any of the issues relied upon by the Respondent were ever put to the Complainant formally or investigated prior to dismissal.

Having considered all the evidence, I am satisfied fair procedures were not applied.

For these reasons, I find that the Complainant was unfairly dismissed.

The Complainant was dismissed with immediate effect and received no notice or payment in lieu of notice. The Respondent accepted that no notice was provided. I find that the Complainant was entitled to statutory notice and that the Respondent was in breach of the Minimum Notice and Terms of Employment Acts.

Therefore, I find the complaint well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00068242-001

Where the Complainant has been deemed to be unfairly dismissed from his employment, he is entitled to redress under Section 7 of the Act. In considering what would be an appropriate form of redress in this instance compensation as provided for under Section 7 (1) (c) (i) is the only option.

In considering the appropriate amount of financial loss, Section 7 (2) provides for the following considerations:

“(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal”.

“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; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

The Complainant was dismissed on 23 July 2024 and obtained alternative employee on 27 September 2024 earning a hourly wage of €13.30 gross working 40 hours a week. This represented a loss of 9.5 weeks remuneration, minus the two weeks’ notice, at a sum of €700 per week.

Having regard for the reasoning set out above, I award compensation in the sum of €5,250 (gross) as being just and equitable having regard to all the circumstances.

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

CA-00068242-002

I award the Complainant compensation equivalent to two weeks’ wages which equates to €1,400.