Complainant

Respondent

Parties

Mr Victor  Veliksar

OCS (One Complete Solution Limited)

Representatives

Self-Represented

Ms Hannah Rowe of IBEC

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-00070995-001

22/04/2025

The issue in contention concerns a complaint of alleged Unfair Dismissal of a Cleaning Operative by a Contract Cleaning Company.

The employment began on the 22nd August 2019 and ended on the 11th February 2024.

The rate of pay was stated by the Complainant to have been €1,300 per fortnight for 38 hour week.

The Complainant self-represented but gave an extensive Oral testimony supported by a Written Submission. He had been employed since 9th August 2019 with a blemish free record -no warnings or disciplinary sanctions.

However, on the morning of the 16th January 2025 there was a gathering of staff in a Storeroom in Hanger 2. Present were colleagues V, M and Supervisor CA. The Supervisor in a loud and aggressive manner questioned the Complainant about an incident that it was alleged happened that morning involving Trainee, Ms M.  She was allegedly, earlier that morning, called a Bit*h by the Complainant but this was denied.

The Supervisor stood in the doorway of the room, effectively blocking the exit. The Complainant stated that he would not speak to her as she was being rude and personally aggressive. He alleged that the Supervisor had a very bad track record with staff – forcing many to take sick leave with stress due to her attitude. He did not want a row, and he stated that he wished to go back to his work. He suffered from Agoraphobia and did not like crowded small rooms. There was a disputed physical issue at the Door. The Complainant resolutely denied that he physically pushed the Supervisor out of the way.

It has to be noted that the Complainant had raised a formal Bullying Harassment complaint against Ms CA on the 14th January 2025 The Respondent had replied suggesting a first informal meeting. However, things had not progressed by the time of the incidents in the Storeroom.

Following this incident the Complainant was suspended. A process of Investigation and Discipline/Appeal followed. The Complainant was dismissed on the 11th February 2025.

He strongly alleged that the Investigation/Disciplinary/Appeal process was completely flawed. No relevant witnesses were called, and he did not have an opportunity to cross question them. It was a set up by the Respondent to support the Supervisor.

The Respondent was represented by Ms Rowe from IBEC. Extensive Oral testimony was given by Respondent Managers. A detailed written submission was relied upon. Witness evidence from a number of employees was provided and submitted in evidence. Ms Rowe outlined the entire Investigation /Disciplinary /Appeal process that had been undertaken. It was in perfect keeping with SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary procedures. All Managers involved were properly Independent and all relevant witnesses had been interviewed. Representation was offered at all meetings. A Translator was provided at all stages. All minutes were shared with the Respondent.

The outcome of Dismissal for Gross Misconduct was entirely proportionate and was upheld at the Appeal stage.

Ms Rowe submitted case law precedents in support of the position that the EAT or Adjudication cannot substitute, in variance with the involved Employer, their view of a case. This is especially so when a full and fair HR process has been used. Looney & Co v Looney, UD 843/1984 and O’Riordan v Great Southers Hotels UD1469-2003 were cited as being particularly relevant in a Gross Misconduct case.

3:1     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:2  The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for the former Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length.

Accordingly, in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “Band of Reasonableness”.

3:3     Review of the Evidence both written and Oral.

Extensive written witness evidence was presented by the Respondent and supported by considerable Oral Testimony from Ms MCG and Mr G. Full cross examination of the evidence and witnesses took place.

Having listen to all the oral evidence and carefully read all the documentation and extensive employment procedures I came to the view that a full and fair process had been followed up to and including the final Appeals stage. I could find no faults under the Natural Justice or SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures headings.

3:4     The Dismissal Decision and the “Band of Reasonableness”.

Regarding the decision to dismiss as opposed to a range of alternative lesser penalties I listened to the arguments of the Respondents that violent behaviour was a most grievous breach of all their polices that effectively only left one decision – Dismissal- open to them. The Adjudicator questioned the Respondent Managers, particularly Mr G, the Appeal Chairperson, on possible other courses of actions less than Dismissal – moves to other sites etc. The Respondents were of the view that moves to other sites would simply be transferring a problem between locations without properly addressing it.

As regards the question of witness evidence and the use/non use of CCTV Ms MCG explained that all efforts to obtain evidence had been made and taken into account during the Proceedings. Witness evidence from Mr G, who was the final Appeal Chairperson, supported this view.

The Respondent witness evidence was professional and clearcut. All procedural steps had been followed correctly and the decision taken, it appeared, with full consideration.

3:5       Adjudication Conclusion

The dismissal may well have been, understandably, most upsetting to the Complainant but I had to come to the view that it fell in the “Band of Reasonableness” for an employer in a similar situation or industry. The Legal precedents quoted all support this view.

Accordingly, I did not find the Dismissal unfair and the claim fails.

Unfair Dismissal