Complainant

Respondent

Parties

Hadean  Milner

Bar One Racing Limited

Representatives

In person

Internal representation

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-00068742-001

21/01/2025

The complainant was employed by the respondent as a Deputy Manager from 1st August 2023 until his dismissal on 10th January 2025. The complaint relates to an alleged unfair dismissal.

The respondent contends that the complainant was not unfairly dismissed. The respondent’s position is that there were five complaints made against the complainant; four were from customers and a fifth complaint related to the complainant allegedly selling cigarettes from company premises.

The issue prompted an investigation which was carried out by a member of management of the respondent organisation. The investigator passed the facts to another member of senior management, and a disciplinary process was carried out which culminated in the complainant’s dismissal. The respondent stated that throughout the disciplinary process the complainant was vague and unclear in his answers which resulted in the decision maker terminating the complainant’s employment based on the facts and evidence available in relation to the complaints made. The respondent stated that the complainant was provided with an opportunity to appeal the dismissal but chose not to do so.

Evidence

Ms Karen Savage who conducted the investigation gave sworn evidence at the adjudication hearing. The witness stated that despite the complainant stating he had given cigarettes to a colleague as he himself was giving up smoking, the statement of the person in question in relation to this complaint was that the complainant had sold her cigarettes and had also sold her perfume on another occasion. The witness also stated that it was her understanding that noncustomers were coming into the betting shop to buy cigarettes. In response to the evidence, the complainant stated that he did sell perfume on one occasion but never sold cigarettes and the parcel of cigarettes he left with a colleague was a private matter and were to be collected from the shop.

Mr Mark Huges who conducted the disciplinary process gave sworn evidence at the adjudication hearing. The witness stated that following on from the investigation, he conducted a fair disciplinary process which considered the available evidence and the responses of the complainant. The witness confirmed that the complainant denied that he had ever sold cigarettes despite the complaints made by his colleagues and the written statements in relation to same. The witness stated that the complainant was given multiple opportunities to address the accusations against him and failed to do so. The witness stated that he ultimately decided to terminate the complainant’s employment on the basis of the available information in relation to the complaints made.

Conclusion

The respondent concluded its submission by stating that the complainant was subject to a fair and transparent investigation and disciplinary process in relation to the complaints made against him. The respondent stated that the issue of selling cigarettes on company premises was an issue that could have resulted in the respondent business losing its licence and approximately 300 staff losing their employment and livelihood. The complainant was given the opportunity throughout the investigation and disciplinary process to explain the accusations made against him which he did not do.

The complainant represented himself at the adjudication hearing and addressed his complaint by way of oral submission and evidence by affirmation. The complainant’s position is that he had interpersonal difficulties with his colleagues at work and there is no truth in the complaints that were made against him. The complainant stated that he never sold cigarettes in the workplace and that his dismissal arose because of an unfair investigation and disciplinary process which had a pre-determined outcome and which accepted the position of unreliable witnesses throughout. The complainant acknowledged that he was given an opportunity to appeal his dismissal but did not submit an appeal as he felt the appeal would not succeed. The complainant contends that he was unfairly dismissed and is seeking compensation in relation to his complaint.

The complainant alleges that he was unfairly dismissed due to an unfair and pre-determined disciplinary process. The respondent’s position is that the complainant was fairly dismissed following a fair and transparent process in relation to accusations that the complainant was selling cigarettes from his employment.

The Applicable Law

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

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)(b) of the Unfair Dismissals Act, 1977 provides as follows:

(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) not relevant…….

(b) the conduct of the employee,

Reasonableness

Section 6(7) of the Unfair Dismissals Act, 1967 at relevant part provides as follows:

6(7) 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……..

Band of reasonable responses

The respondent contends that it acted reasonably in dismissing the complainant in accordance with Section 6(4)(b) of the Unfair Dismissals Act, 1977 and that it in the circumstances of the complaint the dismissal of the complainant was the proportionate sanction when considering the actions of the complainant.

I note that in The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is, however, not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”

Gross misconduct

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.

Conclusions

The role of an Adjudication Officer (AO) in a complaint of alleged unfair dismissal is to hear from the parties and decide if the respondent acted within the band of reasonable responses of a reasonable employer in respect of the dismissal. It is not the role of the AO to decide on the guilt or otherwise of the complainant, nor is it the AO’s role to substitute their own judgement for that of the employer who dismissed the employee. In relation to the current complaint, it is also necessary to decide whether the actions of the complainant constituted gross misconduct warranting summary dismissal.

From a procedural perspective, I am satisfied that the respondent carried out a fair and transparent disciplinary process and provided the complainant with the opportunity to explain his position in relation to the accusations that were made against him. The complainant was also provided with the opportunity to appeal his dismissal and chose not to do so.

In respect of whether the complainant’s actions amounted to gross misconduct, the complainant was alleged to have been selling cigarettes from his employer’s premises. There were complaints made by staff to this effect and statements made in respect of the complainant calling to the shop on his day off and handing cigarettes to his colleagues to be passed on. The complainant was provided with the opportunity to address these issues by the respondent in the disciplinary process and did not do so.  In the absence of a satisfactory explanation from the complainant, the respondent made the decision to dismiss the complainant based on the complaints and statements that were made by the complainant’s colleagues and the available evidence in relation to the issue.

Gross misconduct is described as the type of behaviour that no reasonable employer could be expected to tolerate. The issue of selling cigarettes and risking the loss of the respondent’s licence and the livelihood of 300 employees, in my view meets the definition of gross misconduct.

In all of the circumstances of the complaint and having considered the written and oral submissions of the parties as well as the evidence adduced at the adjudication hearing, I find that the respondent acted reasonably towards the complainant throughout the investigation and disciplinary process and that he was not unfairly dismissed.

For the reasons stated above, I find that the respondent behaved reasonably towards the complainant and he was not unfairly dismissed. Accordingly, I find that the complaint is not well founded.

Unfair dismissal