Complainant

Respondent

Parties

Dermot  Murphy

Murphy International Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Glenn Cooper Dundon Callanan LLP

Alastair Purdy Alastair Purdy LLP

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-00069226-001

12/02/2025

The complainant was employed as Head of Operations, Plant and Transport when he was dismissed on 5th July 2024. He claims he was unfairly dismissed.

The respondent denies the claims in full submitting that the complainant was dismissed for gross misconduct following a fair investigation disciplinary and appeals process.

The respondent submits that.

The Complainant was employed by the Respondent from 1980 until his summary dismissal on 4 October 2024, holding the senior role of Plant Operations Manager at the time.

Following a protected disclosure received on 7 May 2024, an investigation was initiated into allegations that the Complainant had facilitated the unauthorised use of the Respondent’s labour, plant, equipment and materials for the benefit of his son, a former employee. The allegations included the use of company plant and vehicles at a private site, fabrication of steel gates in the Respondent’s workshop, and the processing and payment of company invoices for stone, steel, powder coating and scaffolding relating to that site.

The Complainant was notified of the allegations, provided with supporting documentation, and afforded opportunities to respond. While he accepted awareness of some resource use, he denied wrongdoing, asserted that costs would be rectified, and emphasised his 45 years of unblemished service. Several investigation meetings were scheduled and postponed due to medical certification, and the investigation meeting ultimately took place on 3 September 2024.

An investigation report dated 13 September 2024 concluded that there was sufficient evidence to progress the matter to disciplinary stage. A disciplinary hearing was held on 30 September 2024, following which the disciplinary officer found that the Complainant had abused his position of trust, facilitated the misuse of company resources, and authorised payments relating to private works. This conduct was found to constitute gross misconduct, justifying summary dismissal.

The Complainant’s employment was terminated on 4 October 2024. He appealed the decision; however, following an appeal hearing on 30 October 2024, the appeal officer upheld the dismissal on 7 November 2024, finding that the process had been fair, the misconduct serious, and the employment relationship irretrievably broken down.

The Complainant submits that.

he commenced employment with the Respondent on 16 July 19 and was promoted to Plant Manager in 1989, a role he held until his dismissal on 4 October 2024.  He maintains that his dismissal was unfair.

The Complainant’s son, CM, also worked for the Respondent from 2004 and, in 2024, held a senior role as Head of Operations – Plant and Transport.

In May 2024, anonymous allegations were made that CM had improperly used company plant and the fabrication workshop for works at his private home. CM denied these allegations but was dismissed on 15 July 2024 and lodged an unfair dismissal claim against the Respondent.

On 17 June 2024, shortly after returning from holiday, the Complainant was informed that allegations were now being directed against him, largely arising from his relationship with CM and his alleged involvement in certain transactions relating to company plant and materials being used in the construction of CM s private dwelling.  The Complainant was shocked and distressed by these accusations and was certified unfit for work by his doctor.

On 18 June 2024, the Complainant responded in writing, denying any wrongdoing and providing explanations.

In total, six allegations were made against the complainant, all of which he answered.

The complainant submits that the allegations were based on guilt by association, rather than any direct misconduct. He explained that any use of plant and equipment by CM was believed by him to be within normal and accepted company practice.

The complainant also submits that CM was more senior than the complainant and was responsible for directing plant usage, and that he the complainant was not involved in ordering materials such as stone allegedly invoiced to the company, which CM had, in fact, paid for privately.

The Complainant maintains that he acted honestly at all times, did not misuse company resources, and was unfairly subjected to disciplinary action solely because he was CM’s father.

The Unfair Dismissal Acts, 1977-2015 (“the Acts”) defines “dismissal” in relation to an employee as including the termination by the employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

Section 6(1) of the Acts provides:

“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 Acts provides:

“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: . . . (b) the conduct of the employee . . . .”

Section 6(7) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) 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 [the procedure which the employer will observe before and for the purpose of dismissing the employee] or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act”.

I note in Redmond on Dismissal Law 3rd Ed:

[16.10]. Dishonesty, no less than ‘misconduct’, is not a term of art. The phrase covers a multitude of activities from wrongs which are criminal in character, such as theft, embezzlement, industrial espionage and falsification of company records, to wrongs comprising untruths, misleading statements and so on. An act of dishonesty ruptures trust. The UK EAT takes a two-stage approach to dishonesty. First, it must be decided whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If so, then second, consideration must be given to whether the person concerned must have realised that what he or she was doing was by those standards dishonest.[17]

[16.11]. It is not for the employer, nor the WRC, to establish the guilt or innocence of the employee. The WRC will look to see whether there are reasonable grounds to sustain the employer’s suspicion that an employee has acted dishonestly. There is no question of establishing mens rea. In Looney and Co Ltd v Looney[18] the EAT summarised as follows:

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

[16.12]. Relevant considerations in assessing the employer’s reasonableness may include whether the employee’s behaviour was deliberate, whether the employer delayed its investigation,[19] whether the employee attempted to cover up the conduct, or denied it, or attempted to change his story during the employer’s investigation, whether the employer’s rules, expressed in the contract of employment or otherwise, adverted to the wrong in question so that the employee knew that what he was doing was a disciplinary matter, whether the employee was unable to explain his behaviour,[20] or did not immediately refute an allegation of dishonesty when put to him by his employer.[21]

On (a) above, the process of adjudication does not decide the question of whether, on the evidence before it, the employee should be dismissed. The task is to consider what a reasonable employer would decide.   An Adjudication Officer should have regard to the reasonableness of the employer’s conduct in relation to the dismissal.  This requires a determination of the range of responses which a reasonable employer could have taken having regard to the nature of the case and then a consideration as to whether the employer’s decision lay within that range.

On (b) above, this relates to the process under which the dismissal took place. Fair procedures are not perfect procedures. The role of an Adjudication Officer is to establish if the process followed by the company conformed to the accepted standard of fairness and objectivity. A central consideration is whether any purported breach of due process endangered a fair hearing or a fair result. Generally, fair procedures require that details of any allegations of wrongdoing are put to the employee concerned, the employee is given the opportunity to respond to these concerns, the employee is given an opportunity to avail of the right to be represented, and the employee is afforded a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, and circumstances.

The fact of dismissal is not in dispute and accordingly the burden of proof rests on the respondent company to show that it had substantial grounds to dismiss the complainant, that it followed fair and reasonable procedures, and that the sanction of dismissal was proportionate having regard to all the circumstances. 

Witness for the respondent Mr Martin Kerr (Mr. K) Security Manager for Ireland and the person assigned to investigate the allegations against the complainant advised the hearing that said that complaints were initially made by a whistleblower, following which he was asked to investigate along with Mr Seamus  Ascott the Respondent’s Group Head of Security.

Mr. K advised the hearing that he had issued a letter to the Complainant on 17 June 2024 inviting him to attend an in-person investigation meeting to take place on 19 June 2024 at the Respondent’s Newbridge office.   Mr. K advised the hearing that the letter informed the Complainant of the allegations against him which concerned the alleged use of the Respondent’s resources i.e. employees, plant, equipment, and materials at a site owned by the Complainant’s son, CM on which he was at the time building a private dwelling.  Other allegations related to the use of the Respondent’s fabrication shop for the fabrication of steel gates subsequently installed at his son’s site.

Mr, K advised that the letter of 17 June also referred to a number of transactions processed through the Respondent’s internal payment system, in which the Complainant was recorded as the “Requestor” and/or “Orderer.” These transactions included the processing of three deliveries of stone to the complainant’s sons site under a Respondent purchase order as well as the ordering and payment by the Respondent for powder coating services in respect of the steel gates as well as the purchase by the Respondent of steel from another company which was alleged to have been used in the manufacture of gates for CM’s site.

Mr. K advised the hearing that the invitation letter included a list of enclosed documents which were attached to ground the allegations including tracking documents in relation to the location and travel of company vehicles over a two year period to and from a site in which the complainant’s son CM was building his own private dwelling. 

The respondent advised the hearing that the complainants son CM had prior to this been investigated and subjected to the company disciplinary process in respect of these same allegations.  The investigation into allegations against CM had commenced on 23 May 2024.  

Mr. K advised the hearing that the complainant was advised of the right to be accompanied at the investigation meeting and that he chose to be accompanied by a colleague Mr. B.    Mr. K stated that there were a number of attempts to schedule the investigation meeting as the complainant had gone on sick leave after the 17th of June letter and so the meeting eventually took place on 3 September 2024.

Mr. K advised the hearing that there was an acceptance by the complainant in respect of some of the allegations made. Mr. K advised the hearing that in addition to the matters raised in the initial letter.   Mr. K stated that a further matter was raised in July 2024 respect of scaffolding to the value of €3,000 which was ordered and put through the respondent company account by the complainant and paid for through the respondent company for use by the complainants son (CM) in the building of his own private residence.   This further allegation was notified to the complainant on 15th of July 2024 and also referred to tracking data from company vehicles in respect of company vehicles and drivers in relation to time spent traveling to and from the respondent premises to the site of CM’s private residence.

Mr. K advised the hearing that the complainant had responded in writing to some of the allegations raised.  Mr. K advised the hearing that the complainant attended the investigation meeting on 3rd of September and was accompanied by a colleague Mr. B.

Mr. K advised the hearing that in carrying out the investigation, the Respondent sought to establish the extent of the Complainant’s knowledge and involvement in the transactions the subject matter of the investigation and whether company resources had been used for private purposes.

Mr. K advised the hearing that he had at the meeting gone through the documentation and information from the plant tracking system which had shown that here had been 62 deliveries to CM’ s site by 12 different vehicles and drivers.  Mr. K stated that it had been noted that 12 vehicles with drivers had cumulatively spent 228 hours at CM’s site (not including travel time) between the period  July 2022 to  May 2024;  Mr. K added that from the tracking data, it was identified that 8 separate items of plant spent a total of 273 days at CM’s building site. 

Mr. K stated that the complainant’s response when these matters were put to him was that he was aware that idle plant was being used at CMs site but that he could not say the extent of same.  Mr, K stated that the complainant had also stated that it was not unusual for company plant to be used by employees for private use but that the complainant had conceded that amount allegedly used on CMs site was on a much larger scale than he had realised.

Mr. K advised the hearing that the complainant’s role in the company meant that he was responsible for the allocation of plant equipment and drivers on a daily basis.  Mr. K stated that the complainant’s response was that he was aware that plant was being used at CM’s site but that he was not aware of the extent of this.

Mr. K stated that as Plant Operations Manager the complainant would have oversight over all movements of Transport from the yard, however he stated that, the complainant argued that as Head of Operations his son CM would have had the opportunity to task drivers himself without the complainants ’s knowledge.   Mr. K stated that the complainant had argued that his son CM was more senior to him and so he would have had the authority to direct drivers to carry out tasks at his site without the complainant’s knowledge.

The respondent at the hearing clarified that at the relevant time it was the complainant who occupied the more senior role and not CM.

Mr. K stated that the complainant as part of his role would have had photographs of the daily Whiteboards showing the daily allocation of tasks for drivers and vehicles, these photographs had been stored electronically on a file on the respondents shared  F directory but when attempts were made to access this file  for the purpose of the investigation it was discovered that the file had since been deleted.

Mr. K stated that in the course of his investigation he had interviewed drivers to ascertain whether they had been directed to go to CM’s site to carry out deliveries etc., he stated that some drivers had admitted to having been directed to go there but others had denied it.

Mr. K stated that another allegation related to a matter of 3 loads of stone being ordered and delivered to CM’s site having been ordered and paid for through the respondent company.

This related to three loads of pebbles which were ordered for CM’s site and were ordered and paid for by the respondent.  Mr. K stated that this was only discovered months later when an employee queried the delivery address of the stone.

Mr. K stated that the complainant when asked about this stated that it was an error and that the 3 loads delivered to CM’s site were invoiced to the company by mistake and that they had later been paid for in cash by CM and a credit note issued to the company to rectify the error.

Mr. K stated that the complainant had indicated that there were 2 errors involved in this regard one on his behalf in generating an order which covered 5 loads of stone which included the 3 loads delivered to CMs site and the second error was by the stone company charging the respondent for these 3 loads instead of CM. 

Mr. K stated that another matter was raised with the complainant in respect of the allegation that the complainant had ordered steel to the value of €1500 which was allegedly used in the manufacture of gates for CM’s site.  Mr. K stated that the complainant in response to this stated that the steel he ordered was for the company use and was not the same steel used to make CM s gates.

Mr. K advised the hearing that another allegation was raised in respect of powder coating of gates for CMs. private residence which was done at the expense of the respondent.

Mr. K stated that the complainant in response to this had stated that he had assumed that his son had got approval to have this job done and to put it through the respondent company as the company providing the coating would not take cash and so it was put through the respondent books with the intention that it would be paid back later.   The complainant stated that it had since been reimbursed to the respondent.  Mr. K at the hearing stated that it had been repaid but only once the matter became the subject of an investigation.

Mr K stated that another allegation in relation to €3000 worth of scaffolding being ordered and delivered by company plant to CMs site only came to light in July 2024 and so it was notified to the complainant at that point that it would be included in the investigation.

It was put to Mr. K that the complainant may not have been aware of the extent of the respondent plant and machinery being used by CM in the building of his private dwelling.  Mr. K in response to this stated that the complainant in his role had responsibility for logistics and should and would be aware of the location of all plant and machinery especially given the industrial level of same which was being used at CMs site.   It was also put to Mr. K that the complainants son CM had been in a more senior role than the complainant and so the complainant would have had to accept orders from CM in respect of the allocation of plant and would not have been in a position to refuse.  The respondent at the hearing pointed to the fact that at the relevant time to which the allegations refer i.e. prior to May 22024, that the complainant during this time had held a more senior role to CM.

Mr. K advised the hearing that the complainant had been put on a period of paid suspension during the period of the investigation.  When asked why it was decided to suspend the complainant the respondent replied that he felt that staff were not co-operating with the investigation while the complainant was still at work and so he felt it was detrimental to the investigation to have the complainant continue to attend work during the investigation.

The complainants side argued that it was commonplace for employees to use company plant and machinery for their own use.  The respondent in reply to this stated that it may have been the case that if someone asked to borrow a vehicle, they may have be granted permission to borrow it but would certainly not have used plant and equipment on the industrial scale seen in this case.  When the complaints were put to the complainant, his response was that this was normal within the company.

Mr. K stated that the complainant did not deny that plant was used for private use without permission. Regarding the work on house gates in the workshop, the complainant said he had assumed that CM had been granted permission by a more senior manager to have this work carried out.

The complainant side asserted that the complainant with the benefit of hindsight admits that he should have double checked whether his son CM had secured approval for certain activities and that he should perhaps have double checked or followed up on matter where goods were ordered through the respondent company but which were supposed to be paid for later by a means other than through the respondent company .

It was also asserted that the complainant was unaware of the extent of plant being used at CMs house as it happened over a 2-year period.  Mr. K in cross examination disputed this stating that the complainant would had to have been aware of the extent of plant being used due to the nature of his role.

The second witness for the respondent Mr Brendan O’Hara (Mr. H) advised the hearing of his appointment as disciplinary officer in relation to this matter.  Mr. H advised the hearing of the documentation reviewed by him prior to the disciplinary hearing.  He advised the hearing that the complainant attended the disciplinary meeting accompanied by a colleague Mr. B.  Mr. H advised the hearing that the respondent company operates a three-way approval process for organising goods and materials which in theory should prevent one person from having complete authority over an order from inception to delivery.  He outlined how an individual employee raises a request which is then forwarded to procurement and finally to the requestor.

Mr. H advised the hearing that the complainant was sin a position of trust and authority within the respondent company and through his actions had broken that trust and abused his position of authority.   Mr. H advised the hearing that the same person should not act as both requestor and orderor on the same transaction.  He added that it should not happen and that it would have to be deliberately done for this to happen.

Mr. H added that the complainant had played an integral role in the unauthorised use of facilities, in theft and in the misapplication of transport.

Mr. H stated that the complainant in the disciplinary meeting had confirmed that he was aware that his son CM was using the respondent’s plant and equipment for his own use.  Mr. H stated that the use of plant by CM had been on an industrial scale with over 200 hours of logistics involved.  Mr H added that some of the plant was at CM s site for days weeks or months at a time.

Mr H stated that the complainant also confirmed that he had knowledge from the drivers that they had been carrying out work for CM at his site.

Mr. H advised the hearing that he had also asked the complainant whether this situation would have happened i.e. the use of plant on such a large scale if it had been someone other than his son and Mr. H stated that the complainant had confirmed that it would not have happened  if it was anyone else as only the complainant and CM had the authority to approve the level of activity involved.

Mr. H referred to the fact that the stone was ordered by the complainant to be delivered to CMs site and that this was also paid for by the respondent until it was spotted months later and raised with the complainant and CM.

Mr. H also referred to the fact that the scaffolding was organised by the complainant and CM and was paid for out of the business account and that this amounted to a cost of €3,000 which went unnoticed until it was spotted by an employee of the respondent.

Mr. H stated that the complainant in response to this allegation had conceded that the scaffolding had been ordered through the respondent company for CMs private use but the complainant claimed  that there was an agreement in place with the scaffolding provider that it would not be paid for out of the respondent business account but would be paid separately by CM.  Mr. H stated that when he sought to verify this with the contact person in the other company whose details were provided by the complainant, the contact person did not corroborate the complainants story in this regard.

Mr. H also referred to the fact that the alleged payment proposal had not been highlighted anywhere on the system by the complainant and Mr. H referred to the fact that a note could have been placed on the system to reflect that this was to be paid for by CM as there was room in the system to input free text if one wanted to do so.

Mr. H also referred to the fact that the coating for the gates  for CMs site had been carried out and paid for by the respondent in the amount of €800  this had been paid for by the respondent and no indication was given that this would be repaid to the company until it was raised in the investigation and at that stage it was repaid.

Mr, H stated that the complainant had put a lot of emphasis on the fact that CM was more senior to him and so he had to do as he was told by CM but Mr. H stated that during the time period the subject of the allegations it was the complainant who was more senior to CM.

Mr. H at the hearing was asked why he had recommended dismissal as opposed to a lesser disciplinary sanction.  In response to this Mr. H had stated that he concluded that dismissal was the only sanction adding that he had never seen the company account being used for personal use on the industrial level as it had been in this case.  Mr. H added that the complainant had held a senior position for a long time and that he felt that the trust between the company and the complainant had been irreparably broken.  Mr. H stated that the allegations involved in this matter were very serious and involved theft fraud and unauthorised use of company plant and resources.  Mr. H added that he had considered the complainant length of service but that the disciplinary process treats everyone equally.

Mr. H confirmed that he did not consider alternatives to dismissal due to the fact that the trust had been broken.

The matter of the fairness of the disciplinary process was also examined at the hearing and the fact that the allegations in relation to the scaffolding and the fabrication of the steel were not mentioned in the findings of the disciplinary process and did not form part of the reasons for dismissal.

Mr. H in his evidence referred to the finding that the 3-way approval process was overridden by the complainant and CM and that this was managed due to the level of authority they had within the company. 

In referring to the matter of the 3 loads of stone being delivered to CM s site and charged to the company which the complainant states was an error by the stone company Mr. H questioned how it took 4 months for this mistake to come to light and he stated that if it was a genuine mistake it should have been picked up by the complainant or CM much earlier and dealt with.

Mr. H in referring to the complainant position that he was unaware of the extent to which company plant was being used by CM stated that it is a huge part of the complainant’s job to know where plant and equipment is and what its being used for.

The complainant at the hearing stated that he built his own house in 1984 and used company machinery for this as it was common practice within the company to use company plant and machinery for personal use.

Mr. H confirmed that some personal use of company equipment would be permitted but not to the extent it was in this case.

It was asserted on behalf of the complainant representative that the order for the scaffolding clearly stated CM s residence on the quotation and that this shows that the complainant and CM were not trying to defraud the company as it clearly stated CMs site on the order.

Mr. H stated that if it is the case the complainant had assumed that CM had approval to put this order through the company then he could and should have checked that CM had such approval.

Mr H stated that the complainant had an obligation to the company to do his job properly and that at the very least as a senior manager the complainant was not doing his job properly if he was unaware of the industrial levels of plant and equipment which were being used at CM s site and which were thus not available for company use during this time.  .

Mr. H added that as regards the ordering of the gravel for CM s house which is alleged by the complainant be a mistake by the gravel company Mr. H stated that this invoice could only have been raised if all the internal processes were completed.

In addition, Mr. H added that the CEO of the respondent company is based in Ireland so if the complainant or CM wished to ask for his approval to carry out the activities engaged in, they could have sought such approval quite easily but chose not to.

The respondent’s 3rd witness Mr. Brendan Sugrue, Managing Director Plant and Transport Services (Mr. S) gave evidence in respect of his role as appeals officer in the process.

Mr S outlined his role in the company and the history of his employment with the respondent.

Mr. S also outlined his previous experience in chairing disciplinary matters. Mr. S stated that the appeal hearing was held on the 30th of October and the complainant attended accompanied with his colleague Mr. B.

Mr. S advised the hearing that the complainant in the appeal hearing addressed the allegation in respect of the 3 loads of stone ordered and paid for by the respondent but delivered to CM.  Mr. S stated that the complainant made reference to the quality of the stone and stated that no one had considered the relevance of this.   Mr. S stated that the complainant had submitted stone was not of good quality and so he had started looking at changing suppliers.

Mr S stated that the complainant had also submitted that the ‘scaffolding’ allegations were not included in the investigation into his sons’ actions and were only brought up in relation to the complainant’s own investigation process and the complainant questioned why this matter was held back in his son’s investigation.  Mr. S stated that he clarified that these additional allegations had only come to light after the investigation into CM and after CM had been dismissed from the company.

Mr. S stated that the complainant in his appeal had referred to the fact that he had been under the impression that CM had been granted approval from the CEO to carry out the activities the subject of the investigation and whether or not the CEO had been asked in this regard.

In addition, Mr. S stated that the complainant also alleged that the plant used on CM s site was idle plant and was not being used by the respondent at the time.  Mr. S pointed out that plant may be idle today but may be requested tomorrow and could not be provided if being used on CMs site.

Mr S stated that there was also a discussion about the drivers involved and who had authority to direct the drivers.  Mr. S stated that the complainant agreed that he had responsibility for tasking the drivers and this was done on a whiteboard on a daily basis.  Mr. S stated that he also clarified that the allegation in relation to the use of steel ordered by the company being used for the manufacture of gates for CMs site could not be proven and so it was not part of the outcomes.

Mr. S stated that he upheld the decision to dismiss and added that this was due to the significant amount of plant and equipment involved and the value of same.

Mr. S stated that he had never before seen such a sheer value and number of transactions going through the company for the benefit of one employee.  Mr. S added that it was also unusual that some of these transactions made their way all the way through to payment by the respondent.  

Mr. S stated that the complainant would have had plenty of opportunity within the system to insert free text to flag where items were intended to be paid for by CM or by someone other than the respondent.

Mr S concluded that the complainant had been afforded a fair investigation, disciplinary and appeal process.

The complainant at the hearing outlined his long service in the company and the fact that he had worked there for 45 years.   The complainant advised the hearing that his son CM had worked in the business for 20 years until he was dismissed in 2024 following an investigation into the same allegations/matters in respect of which of which the complainant was now being investigated.  The complainant advised the hearing that both he and his son CM had reported directly to Mr. JM CEO.

The complainant told the hearing that it was not unusual for employees to borrow company plant and equipment for personal use.  In support of this the complainant stated that he himself had used company plant in the building of his own house back in 1984.  The complainant stated that it was common practice across the company.  The complainant when questioned as to whether it was common to use the company plant and equipment to the scale and extent used by CM stated that he was not aware of the extent of CM s use of plant and equipment as it had happened over a two-year period.    The complainant also stated that he had assumed that CM had obtained approval at a higher level to carry out activities such as putting transactions through the company account.  The complainant stated that in hindsight he should have double checked whether or not his son actually had approval for such activities.

The complainant in his evidence stated that he had initially responded by email to the allegations raise and responded again after the raising of the allegations in respect of the scaffolding.   The complainant advised the hearing that the matter of the scaffolding had not been raised with his son CM and did not form any part of that disciplinary process but that it had been raised with the complainant.  The respondent had stated that the scaffolding issue had only come to light after CMs disciplinary process had concluded.

The complainant opined that the scaffolding allegation had been held back and was only brought up in the context of the complainants own disciplinary process,

The complainant advised the hearing that a couple of days after these matters were raised, he found that he could no longer continue to work while these matters were ongoing and he had attended his doctor who certified him as unfit to attend work.

The complainant stated that he returned to work on the 3rd of September as he decided that he should try and deal with the allegations being levelled against him.

The complainant outlined how he attended the investigation meeting and referred to that two of the allegations raised had gone by the wayside between the investigation and final dismissal.  He stated that these allegations related to the alleged use of the company steel in gates made for CMs private residence and also the allegation in respect of the fabrication of the steel gates for CMs site.

The complainant stated that a mistake was made in the delivery of the three loads of stone to CMs house as the complainant stated that he himself had ordered 10 loads of stone to be delivered to the respondent site.   The complainant stated that this stone was to be used in a compound for storing machinery.  The complainant stated that he had ordered this stone for the respondent and not for his son’s house and he claims that this was an error that 3 loads had gone to his son’s house instead. 

The complainant also stated that he had never personally directed equipment to his son’s house.  He stated that he was aware that his son was using company plant in the building of his house but stated that he had not been aware of the scale and extent of this use.  The complainant stated that it had happened over a two-year period, so it was not like it was in and out of the yard every day.

In addressing the matter of the scaffolding which was ordered through the respondent system and used in CM s site the complainant stated that he had been involved in putting the order through the respondent system but he stated that the order was only raised to release the goods and they were to be paid for by CM or by CMs builder.

The complainant stated that he was also advised by his son that he had already cleared this with the manager and so the complainant stated that he had believed that to be the case.

The complainant stated that as soon as the matter was brought to his attention, he contacted CM who arranged for it to be repaid by CMs builder.  

The complainant stated that the matter of the sprint coating was something which CM had requested the complainant to do as a short-term solution to put an order through the company as there was some issue with the company accepting payment from CM for this.  The complainant stated that he had done as CM asked as he had believed that this was also cleared by the manager as CM had told him that was the case.

When asked whether the complainant had checked or followed up to make sure it wasn’t paid by the respondent or that it was repaid to the respondent the complainant answered that it has since been paid.  The respondent at the hearing confirmed that his was paid only after the matter became the subject of an investigation and was spotted by another staff member.   The complainant stated that he had assumed it had been paid.

The complaint in his evidence stated that it was not a huge amount of money involved, it cost €800 which he stated is not a huge amount in the grand scheme of things.  The complainant also stated that he had been told by CM that he had permission from management to carryout these activities and so the complainant stated that he had accepted this.

As regards the scaffolding which was put through the respondent company for the benefit of CM the complainant stated that the arrangement was that once the order went through it would be paid for by CMs builder and not the respondent.    This had cost €3,000 and had been paid by the respondent. The complainant again stated that this was supposed to be paid for by CM s builder and stated that he had assumed it had been paid.  The respondent advised the hearing that this only came to light 8 or 9 months later when it was disclosed by a whistle-blower and the respondent stated that the complainant had made no attempts to check or ensure that it was paid prior to this.

The complainant in response to this stated that CM had assured him that it was sorted and he had believed him.

The complainant referred to the fact that his son had assured him that he had permission form management, and he had believed him without checking.  The respondent advised the hearing that the complainant and CM had the same reporting relationship reporting to the same manager.

The respondent in questioning the complainant asked why CM had not attended the hearing in order to corroborate the version of events being advanced by the complainant or why a letter or statement had not been provided by CM corroborating same.   The complainant replied that it was all in CM s own investigation.

I note that the complainant in his evidence to the hearing sought to rely on an assertion that he had assumed that his son CM had been given permission by his manager to put €3000 worth of scaffolding through the respondent company account and also an assumption that CM had obtained permission from his manager for the for work carried out at the respondent’s workshop to a cost of €800.   It is clear from the respondent’s investigation into these matter that the complainant himself had assisted and in some cases procured this equipment or materials on behalf of his son.   These matters were regarded by the respondent company as gross misconduct and therefore warranted dismissal.

I note also that in advancing his claim the complainant’s evidence was that the private use of plant/equipment was common practice among company employees.    Whilst this practice was not robustly contested by the respondent, the evidence was that permission and approval was required, and also that the extent of CMs use was excessive being referred to by the respondent witnesses as being on an Industrial scale.   The evidence of the respondent also confirmed that due to the complainant’s role as a senior manager that it had concluded that the trust, and confidence was irreparably damaged.

On the substantive fairness of the dismissal, the respondent company need only show that it’s decision to dismiss fell within the band of reasonableness, given the circumstances. 

 I am satisfied from the evidence adduced by the managers who conducted the disciplinary/appeals process that due consideration was given to arriving at an appropriate sanction, and that this was proportionate in the circumstances.  

For the reasons outlined, I find the sanction of dismissal comes within the band of reasonable responses of an employer and was proportionate, in the circumstances.

Procedural fairness

I note the respondent relies on their own Disciplinary Procedure along with the SI 146/2000 Code of Practice.   I note the respondent position that the complainant was given ample notice of the allegations against him with the allegations being raised with him initially in June 2024 with an investigation meeting taking place in September 2024.   I also note that the complainant was on notice of the allegations even earlier than the June date as the same allegations with the exception of one matter had already been the subject of an investigation and disciplinary matter involving the complainant’s son CM whose disciplinary process began in May 2024 and ended in his dismissal on 5th of July 2024.   

I note the respondent position that the complainant was afforded a fair and impartial investigation disciplinary and appeal process and was provided with all relevant documentation in advance of the investigation including details of the allegations as well as supporting documentation including tracking data from plant and equipment being utilised on the site of CMs private residence.     I note that each stage of the process was carried out by a different manager and that the complainant was afforded the right to be accompanied at each meeting.

The complainant at the hearing sought to assert that the process was unfair due to the fact that Ms. Rachel Kearns Senior People Business Partner was in attendance as note taker in all three stages of the disciplinary process.   The respondent conceded that Ms. Kearns was present as note taker at all three meetings but added that she did not ask questions or participate in any way in the meetings her only role was that of note taker.

Having considered this in the wider context, I am satisfied from the evidence adduced that the presence of Ms. Kearns as notetaker in the meetings does not render the process unfair.  Accordingly, I am satisfied that the dismissal was both substantively and procedurally fair. 

I am satisfied that the dismissal was both substantively and procedurally fair.  Accordingly, I declare this claim to be not well founded.