Complainant

Respondent

Anonymised Parties

A sales supervisor

A car retailer

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-00031047-001

21/09/2019

The Respondent is a car dealership which sells and services new and used cars. The Complainant commenced employment with the Respondent on 12 November 2014 as Sales Supervisor.

The Complainant’s employment ended on 22nd March 2019,

This complaint was received by the Workplace Relations Commission on 21st September 2019.

CHRONOLOGY OF EVENTS          

The Respondent is a car dealership which sells and services new and used cars. The Complainant commenced employment with the Respondent on 12 November 2014 as Sales Supervisor.

The Respondent became aware of a series of transactions which raised questions as to whether the Complainant had complied with a health and safety instruction to service vehicles before they left the garage and the possibility that his daughter, had been treated favourably without authorisation being sought from the appropriate staff members.

The Complainant was sent a letter by a director dated 19 October 2018 inviting the Complainant to attend an investigation meeting on 23 October 2018. The letter set out the matters under investigation.   Specifically, the following matters were raised with the Complainant in that letter:

a)       In March 2017 the Respondent bought in a car with registration number 161MHXXXX for €12,050.   The buy-in was requested by a colleague of the Complainant’s.

b)      The Complainant sold the vehicle to his daughter, on 3 May 2017 for €12,200.   The washed-out profit on the transaction was €109.75. The question was whether the Complainant requested approval to sell the vehicle at below the market value.

c)       On 9 July 2018, the Complainant sold another similar car with registration number 161DXXXXX to his daughter. This was a direct swap of a vehicle with an odometer reading of 3,650 for one with a reading of 46,600. The value given for the trade-in of €13,650 exceeded the original sale price from over a year earlier by €1,450.  

d)      On 11 July 2018, the Complainant sold the first car with registration number 161MHXXXX to a customer for €14,450 with a trade in allowance of €1,600 against an older car with registration number 09DXXXX. The Respondent could not see any record of the vehicle being serviced in advance of the sale other than an oil and filter change on 12 December 2017 when the odometer reading was 33,465.

e)      On 16 March 2018 the Complainant’s daughter was invoiced €577.18 for replacement of front bumper and grille on her car with registration number 161MHXXXX. No labour was charged on the job and it appeared that the parts only were supplied with a 13.5% VAT rate. The Respondent queried whether the vehicle was repaired by a third party and whether it had been in a collision.

f)       On 16 August 2018 an invoice was issued to the Complainant by the Service Department for 2 tyres for the car with registration number 161MHXXXX. This was a nil invoice and stated that the tyres were charged on a cash docket by the Parts Department. The Respondent queries whether this referred to Parts invoice 23196 for €100 which was paid by credit card. The Respondent also queried whether if that was the case then did theComplainant make the payment or was it the owner of the vehicle who fitted the tyres.

g)       The car with registration number 09DXXXX was sold to another trade Company for €1,700 on 31 July 2018 and bought back in for that amount on 31 August 2018, with a subsequent sale for €1,700 on 4 September 2018.

h)      On 17 October the car with registration number 161DXXXXX was sold for €13,450 with a part exchange allowance on another car with registration number 11DXXXXX of €5,550.   The vehicle was bought in from the Complainant’s daughter for €13,450, or €150 less than charged in the direct swap referred to. The Respondent could see no record of any service check on this vehicle before sale.

i)        The Complainant sold the Complainant’s daughter a car with registration number 11DXXXXX for €5,500 on 18 October 2018 and requested a cheque made payable to the Complainant for €7,900, giving a total of €13,450 being the amount the Complainant allowed on the buy-in.

j)        The amount of €7,900 which the Complainant was requesting equated to the amount outstanding on finance on the car with registration number 161DXXXXX when it was purchased. An HPI check on the vehicle showed that finance was still outstanding and in those circumstances the Respondent’s normal practice was to request a settlement value before issuing a cheque directly to the Finance House. The Respondent queried the settlement amount due to the Finance House.

The Complainant attended the investigation meeting on 23 October 2018 at 11am and was accompanied by his solicitor. His solicitor asked to attend the meeting as the Complainant’s representative.   The appointed investigator, a director, advised his solicitor that it was not normal practice to have a solicitor present at the investigation stage as it was an internal matter.   The Complainant was offered the opportunity to be accompanied to the meeting by a work colleague.

The Complainant’s solicitor insisted that the Complainant was entitled to legal representation at any stage in the process. The Complainant refused to continue with the meeting without his solicitor present at the meeting. His solicitor then requested that the Complainant be afforded the opportunity to reply to the queries set out in the letter dated 19 October 2018. The Director conducting the investigation facilitated that request. It was agreed that the Complainant would submit his written responses to the questions raised by close of business on 25 October 2018.

The Complainant subsequently was certified as unfit to work from 23 October 2018 until 6 November 2018.

The Complainant’s solicitor wrote to the investigation director with written responses which were signed by the Complainant, on 25 October 2018. As a result of the Complainant’s responses, the Investigating Director made further inquiries. He then wrote to the Complainant on 5 November 2018, on the basis of his return to work being on 6 November 2018. The letter confirmed that the written answers provided by the Complainant required further clarification and that the Director would be continuing the investigation on his return to work.

The Complainant did not return to work on 6 November 2018. On 9 November 2018, the Respondent received a sickness certificate stating the Complainant was unfit to work due to stress/anxiety until 4 December 2018. The Complainant subsequently provided a further sickness certificate stating he was unfit to work until 17 December 2018.

On 17 December 2018, the Complainant returned to work without any prior contact. He met with a director who requested that the Complainant provide a certificate confirming his fitness to return to work.   The Complainant became agitated and aggressive and walked out of the garage.

On 2 January 2019, the Complainant returned to work and provided a certificate stating he was medically fit to return to work. On his return, the Complainant stated to the investigating director that he would not continue with the investigation without his solicitor present. The investigating director informed the Complainant that he would need to take advice in respect of the investigation and would revert to the Complainant once he had done so. He requested that the Complainant not attend work pending that advice but confirmed that the Complainant would continue to receive full pay.

On considering the responses provided by the Complainant and in light of the matters uncovered in the course of the ongoing investigation, the Complainant was placed on a holding suspension. This was confirmed to the Complainant’s solicitor in the letter of 9 January 2019.

The Complainant was invited by the letter of 9 January 2019 (referred to above) to a further investigation meeting on Monday 14 January 2019. It was confirmed to the Complainant that he was not entitled to bring legal representation into the investigation meeting but was permitted to bring a work colleague or trade union representative in accordance with the Respondent’s Staff Handbook.

On Friday 11 January, the Respondent’s solicitors telephoned the Complainant’s solicitors to enquire whether the Complainant would be attending the investigation meeting on Monday 14 January 2019. The Complainant’s solicitor confirmed that he was meeting with the Complainant that evening and his advice would be that the Complainant should attend the meeting.

On Monday 14 January 2019, the Respondent’s solicitors again phoned the Complainant’s solicitors to confirm whether the Complainant would be attending the investigation meeting.   Shortly after that call, the Respondent’s solicitors received a letter from the Complainant’s solicitor which inter alia set out objections to Mr SF being note taker in the meeting. The Complainant did not attend the meeting which was scheduled to take place on 14 January 2019.

On 15 January 2019, (by letter dated 14 January 2019), the Respondent’s solicitor responded to the letter from the Complainant. The Respondent also sent the Complainant a copy of the terms of reference based on the matters for investigation as set out in the initial letter of 19 October 2018, together with a note of additional information gathered requiring further investigation. The note contained queries which the Complainant would be asked to address at the meeting.  

The Complainant was invited to attend a further investigation hearing on Friday 18 January 2019. The Complainant subsequently attended the meeting on 18 January 2019. The investigating director chaired the meeting and Mr SF attended in the capacity of note taker. At the outset of that meeting the Complainant asked if he could tape record the meeting. He was then advised that he was not permitted to take a tape recording and would be provided with a copy of the notes. The investigating director also had a meeting with one of the Complainant’s colleagues on 29 January 2019.

Further to the evidence gathering exercise, the director compiled an Investigation Report which recommended that the matter should be considered under the Disciplinary policy.   A copy of the draft report was sent to the Complainant on 7 February 2019 requesting any final comments from the Complainant by Wednesday 13 February 2019. The Complainant did not make any comments on the draft Investigation Report, as noted in a letter from the investigating director dated 28 February 2019.

By letter of 4 March 2019, the Complainant was provided with a final version of the Investigation Report and was invited to attend a disciplinary meeting on 6 March 2019. The Complainant was informed of the allegations of serious misconduct which were being made against him; his entitlement to bring a work colleague or trade union representative; and that the outcome of the meeting could result in a disciplinary sanction against the Complainant, up to and including dismissal. The Complainant remained on paid suspension during this process.  

On 6 March 2019, the Complainant’s solicitor requested that the hearing due to take place later that day be postponed. The Respondent agreed to a new date for the disciplinary meeting which was 11 March 2019.  

On 11 March 2019, a disciplinary meeting was held with the Complainant. Another Director of the Respondent was the chair of the meeting.   Mr SF attended the meeting in the capacity of note taker. The new Director went through each of the individual allegations against the Complainant and asked for the Complainant’s responses to those allegations. The Complainant requested a copy of the handwritten minutes which he was asked to sign. A copy of the handwritten minutes was provided to the Complainant.

By letter of 22 March 2019, to the Complainant confirming whether each individual allegation had been upheld and communicating the Respondent’s decision that the Complainant was being terminated for serious misconduct. The Complainant was given 5 days to appeal the decision.

The Complainant did not appeal the decision within this timeframe. However, an appeal was received on 2 April 2019 from the Complainant’s solicitor stating that the Complainant wished to appeal. Notwithstanding the fact that the Complainant’s request for an appeal was outside the timeframe outlined, the Respondent was willing to give the Complainant an appeal.  

The Group Service Manager responded to the Complainant again on 8 April 2019 outlining that the Staff Handbook required that an employee outlines the reason for their appeal in writing. He requested that the Complainant provide reasons for his appeal by Thursday 11 April.   A date for the appeal hearing was set on Monday 15 April 2019 at 10am should the reasons have been provided.  

The Complainant and his solicitor refused to provide the details and further requested an appeal.   The Group Service Manager responded to the Complainant again on 21 May 2019 outlining that the Staff Handbook required that an employee outlines the reason for their appeal in writing. He requested that the Complainant provide reasons for his appeal by Friday 24 May.   A date for the appeal hearing was set on Tuesday 28 May 2019 at 10am should the reasons have been provided.   There was no subsequent correspondence from the Complainant or his solicitor and the appeal hearing did not go ahead.

SUBMISSIONS

The Complainant alleges that he was unfairly dismissed.

Section 6(1) of Unfair Dismissals Act 1977 – 2015 (“the Act”) 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.”

It is submitted that in accordance with Section 6 (1) of the Act there were substantial grounds justifying the Complainant’s dismissal on the basis of his serious misconduct.

Section 6(4) of the Act 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:

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

the conduct of the employee;

…”

A number of issues have been raised in the Complainant’s complaint form which will be dealt with in turn.

Legal Representation at Investigation Stage

In the case of Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272,the High Court held than an employee has the right to legal representation at the investigation stage if the findings of the investigation could result in his dismissal or reputational damage and those findings were not going to be reconsidered at a disciplinary hearing.

The investigation in the disciplinary process was for the purpose of gathering evidence and to deciding whether there was sufficient evidence to warrant a disciplinary meeting. No conclusive findings were made as a result of the investigative process.   Accordingly, there was no entitlement to legal representation during the investigative process on the basis of Lyons.

The issue of an employee’s right to legal representation during the disciplinary process was considered further by the Court of Appeal in the more recent decision ofMcKelvey v Iarnród Éireann [2018] IECA 346.

The Court of Appeal made a clear distinction between a preliminary investigation process and a formal disciplinary process at para.45:

“The investigative process is usually conducted to ascertain whether there are issues that an employee should be required to answer in a formal disciplinary process and there are no immediate legal consequences that flow from such an investigation. On the other hand, a formal disciplinary inquiry, which often flows from an investigative process, has the potential to have serious consequences for the employee as it is at the end of this process that sanctions may be employed if misconduct is found. Relevant to the rights of the employee in the course of the preliminary investigation is the fact that the findings of fact made in the course of an investigation are of significance only insofar as they may lead to formal disciplinary process. If a formal disciplinary inquiry is later commenced the misconduct alleged will have to be proved in the course of that inquiry and for that reason the employee will be entitled to challenge all of the evidence adduced and will be entitled to call their own evidence.”

There were no immediate legal consequences that flowed from the investigation. The purpose of the investigation was simply to gather evidence and to decide whether the evidence was sufficient to refer the matter for consideration at a formal disciplinary meeting.

Role of Mr SF as Note- Taker

The Complainant raised concerns in respect of the role of Mr SF in the process.   Mr SF is an independent HR Consultant and Managing Director of XXXXXXXX. He is the brother of one of the Directors of the Respondent.

Mr SF was involved in the process in the capacity of note taker. Mr SF did not attend the meeting in any kind of decision-making capacity. His familial relationship to a Director of the Respondent had absolutely no bearing on his involvement in the process.

Further the role of Mr SF in the investigation process was made clear to the Respondent from the commencement of the process in both the letter of 19 October 2018 and 9 January 2019.   No concern was raised in respect of this point until the Complainant’s solicitor wrote to the Respondent’s solicitor by letter dated 14 January 2019.

Role of the Director in the Investigative Process

The Complainant raised concerns in respect of the Director conducting the investigation.  

However, as was determined by the High Court in the Joyce v the Board of Management of Coláiste Iognái [2015] IEHC 809decision that the full panoply of fair procedures does not apply at the investigative stage, where no findings will be made as a result of that process.    

In Joyce v the Board of Management of Coláiste Iognái [2015] IEHC 809, Binchy J stated at para.74:

“It is quite clear that the principles of fair procedures and natural justice do not apply to the investigator stage provided that, in the words of Clarke J. in Minnock “no findings of any sort were made on behalf of the inquirer other than to determine that there is sufficient evidence or materials to warrant a formal disciplinary investigation.”

This was the situation in this case whereby the Director’s role as investigator which was purely for the purposes of evidence gathering and no findings were made against the Complainant. The Director did not make any findings of fact.  

The Complainant was afforded the opportunity to challenge the evidence collated during the investigation on two separate occasions (a) when the draft report was sent to him for his comments and (b) at the disciplinary meeting.

Suspension of the Complainant

The Complainant’s complaint also refers to his suspension.

The Employee Handbook states at p.80: “Where it is necessary to conduct an investigation into an alleged breach of discipline or under-performance the Company reserves the right to suspend the employee with pay pending the outcome of the investigation. In these circumstances such suspension will not be considered a disciplinary sanction”.

The Respondent was therefore permitted to suspend the Complainant in these circumstances. The Complainant was suspended in light of matters that had been uncovered in the course of the investigation, which required further investigation.

This is in line with Noonan J’s position on suspension as outlined in Bank of Ireland v Reilly [2015] IEHC 241 at para. 40:

“As noted by Kearns J. (as he then was) in Morgan v Trinity College Dublin [2003] 3 IR 157, there are two types of suspension, holding and punitive.   However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer.   In general, however, it ought to be seen as a measure of design to facilitate the proper conduct of the investigation andany consequent disciplinary process.”

As outline above, the Complainant was suspended further to the matters being uncovered in the course of the investigation and this measure was undertaken to facilitate the proper conduct of the investigation subsequently. It is also notable he was not suspended from the commencement of the investigation.

Request to Tape Record Investigation Meeting

The Respondent’s Disciplinary Policy does not permit the recording of investigation or disciplinary hearings. The Respondent was accordingly entitled to refuse the Complainant permission to record the Investigation hearing. The Complainant was also provided with contemporaneous notes from each meeting which means there was no requirement for the Complainant to tape record meetings.

Cross-Examination

In the case of O’Leary v An Post [2016] IEHC 237, Keane J. considered an application by the Plaintiff for an injunction prohibiting an investigation in circumstances where the Plaintiff had not been permitted cross-examination at the investigation hearing. In that case, the Plaintiff had not sought to raise any questions or indeed sought to assert the right to cross-examine at the actual investigation itself. Keane J thus stated:

“In the particular circumstances just described, the plaintiff has failed to satisfy me that he has established a strong or clear case that he was wrongly deprived of his right to cross-examine the relevant witnesses at the disciplinary hearing, in breach of his contractual entitlement to natural and constitutional justice and fair procedures.”

Similarly, in this case, the Complainant has had the benefit of legal advice throughout this process. The Complainant’s legal adviser raised many other issues on his behalf. At no point did the Complainant request to cross-examination any of the witnesses.

S.I. 146 of 2000

S.I. 146 of 2000, provides that a disciplinary procedure must comply with the general principles of natural justice and fair procedures namely:

a)       The details of any allegations or complaints are put to the employee concerned;

b)      The employee concerned is given the opportunity to respond fully to any such allegations or complaints;

c)       The employee concerned is given the opportunity to avail of the right to be represented during the procedure;

d)      The employee concerned has the right to 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 or circumstances.

S.I. 146 of 2000 also provides that an internal appeal mechanism ought to be available.

The Respondent complied with the principles of natural justice and fair procedures referred to above:

The Respondent put the details of the allegations to the Complainant, firstly at the investigation stage in the letter of 19 October 2018 and then subsequently in the letter dated 4 March 2019 inviting him to the disciplinary meeting. He was shown the evidence gathered throughout the investigation process and prior to and during the disciplinary meeting;

The Complainant was given the opportunity to respond fully to the allegations;

The Complainant was advised that he could be accompanied by a representative to the disciplinary meeting which could be a work colleague or trade union representative. The Complainant opted not to bring a representative with him;

The Complainant was given a fair and impartial determination of the issues concerned by a Director of the Respondent who had no prior involvement in respect of the allegations against the Complainant. This Director took into account the explanations provided by the Respondent and did not uphold every allegation made against the Complainant;

Furthermore, the Complainant was afforded the right to appeal his dismissal to the Group Service Manager who had no prior involvement with the matter. He did not do so within the time frame outlined however, when the Respondent received a belated request from the Complainant’s solicitor, it was willing to accommodate the appeal. The Complainant failed to provide written reasons for the appeal and an appeal hearing ultimately did not take place.

The Respondent has a disciplinary procedure in its Employee Handbook. The procedure largely follows the procedures set out in S.I. 146 of 2000. The Complainant would have been aware of the disciplinary procedure.

Accordingly, it is submitted that the decision to dismiss the Complainant was reasonable and a proportionate sanction.

Without prejudice to the above, it is respectfully submitted that as Mary Redmond finds in Dismissal Law in Ireland at paragraph 12.16:

“Findings of unfair dismissal have been made entirely on the grounds that an employer failed to live up to the rules of natural justice.   However, the procedural defects will not make a dismissal automatically unfair. The legitimacy of the processes adopted by an employer may be subordinated to the substantive merits of a particular case.   An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee.”

It is submitted that the Respondent’s decision in this case was reasonable in all the circumstances and any alleged procedural shortcomings was not such to (a) change the character of the conduct alleged or (b) to have prevented the dismissal being valid in the circumstances.

For the reasons set out above it is submitted that the Complainant’s dismissal was not unfair and that his claim under the Unfair Dismissals Act 1977 – 2015 should fail.

Without prejudice to the above and in the event that the Adjudication Officer finds in favour of the Complainant it is submitted that the following circumstances should be borne in mind in determining the amount of compensation as is just and equitable:

The Respondent followed its disciplinary procedure and also afforded the employee the principles of natural justice and fair procedures as set out in S.I. 146 of 2000;

The Complainant did not avail of the appeal procedure offered to him within the time scale provided however the Respondent was willing to allow the Complainant to have an appeal hearing. The Complainant never provided written reasons for the appeal and ultimately an appeal hearing did not take place;

The Complainant’s dismissal was wholly attributable to his own serious misconduct.

The Complainant has another role and therefore any potential losses are minimal.

The Complainant contends that he was unfairly dismissed by the Respondent. He was dismissed on the 22nd day of March 2019. He was employed with the Respondent for greater than 12 months at the time he was dismissed on the 22nd of March 2019.

A Director (Director 1) of the Respondent was appointed, to carry out an investigation into circumstances surrounding the Complainant’s involvement in respect of a number of transactions as set out in the Investigation. The purported investigation was based upon carrying out a review of the software system, which is the dealer management system. It was alleged that were a number of transactions involving the Complainant that required investigation.

Director 1 was provided with a number of documents relevant to the transactions. The Complainant received a letter dated 19th of October 2018, wherein he was invited to attend an investigation meeting on the 23rd October 2018. That letter set out the matters to be discussed at that meeting. On the 23rd of October 2018 both the Complainant and his acting solicitor attended the investigation meeting on 23rd of October 2018 at 11am at the Respondent's branch of trading in Dublin. Having been instructed to appear at said investigation meeting the Complainant's solicitor asked if it was acceptable that he attend the meeting as the Complainant’s legal representative. Director 1 advised the Complainant's solicitor that it was not normal practice to have a solicitor present at the investigation stage as it was an internal matter.

While the Complainant had been offered the opportunity to be accompanied to the meeting by a work colleague, the Complainant was not satisfied with being offered to have a work colleague with him as it had never been explained as to what actual benefit a “work colleague” would be in a meeting such as this. In order for fair procedures to be applied, and the fact that the outcome of a such a meeting could result in disciplinary measures up to and including dismissal, he wished to enjoy an assurance that he was going to be treated fairly and impartially from the outset.

Without his solicitor present the Complainant was not satisfied that fair procedures would be employed by the Respondent, given the possible sanction(s) he may face. At said meeting, a Director of the Respondent, Director 1 was accompanied by Mr. SF for the purposes of note-taking. However, the Complainant was confused as to what the real reason for his presence was on account that

the note-taker is the brother of a director and co-owner of the Respondent company. In other words, the Complainant asserts that the note takers presence was disingenuous, given his familial connection as outlined above, and given his background in Human Resources.

It was respectfully submitted that this investigation was devoid of objectivity that any investigative process ought to have. The Respondent asserted that the above position was explained to the Complainant's solicitor in respect of representation at the investigative stage and in particular that legal representation was not permitted. However, the Complainant’s solicitor advised that the Complainant was entitled to legal representation at any stage in the process, including

the investigative stage, on the basis that where an investigative process can lead to dismissal or adversely impact the employee's reputation, a refusal to allow the employee to be accompanied by a legal representative was in breach of the employee's constitutional rights to fair procedures. The Complainant contends – that the stress this inquiry caused him was that he wished to have his solicitor present to ensure that he was and would be in the future afforded fair procedures in accordance with the principles of constitutional and natural justice, particularly

in circumstances where the outcome may i) result in dismissal; ii) adversely impact the individual's future employment prospects; or iii) negatively impact his reputation. Given the situation, the Respondent ought to have exercised that the Complainant's case was the exception rather than the rule and permitted his solicitor to be present during the investigation, given that the outcome of which may result in the above points i); ii) and iii).

The Respondent asserted that the Complainant stated that he would not continue with the meeting without his solicitor being present. In this regard it is important to note that the Complainant was advised by his solicitor that the Respondent was entitled to perform an investigation.

The Respondent’s assertion is incorrect and that the Complainant did in fact cooperate, having stated that he would reply to the allegations in writing. This was accepted, and date deadlines were agreed. Said replies were furnished to the Respondent by close of business on the 25th October 2018.

Arising from the responses provided by the Complainant to the queries raised, the Respondent sought to raise further inquiries to progress the investigation while the Complainant was

unfit to participate in the process. The Complainant respectfully submitted that any reasons provided to the Respondent for not being in a position to immediately engage with the process, were genuine and in no way were intended to delay the process. The Complainant alleged that one of the queries raised related to the sale of a vehicle and a trade-in on the 11th July 2018. The Complainant will alleged that it was unclear from the paperwork relating to this transaction whether the car in question had been serviced prior to the sale, as is required. It was alleged  that on the 31st October 2018, the Respondent invited the purchaser to bring her vehicle back to the garage for a vehicle health check. The service log for said vehicle was absent the record of the vehicle having been serviced since 20th November 2017, when a service was carried out by the Respondent. At that time, it was noted that the next service was due at 53,000 k/m or 20 November 2018.

The service reminder sticker on the inside of the windscreen was reviewed. It appeared to have been altered to show that the next service was due at 63,000 k/m.

The Complainant was unsure as to what was being alleged against him in this regard. If there was a suggestion that the Complainant in any way ‘doctored’ the mileage on said car, he refuted that in its entirety.

On the 9th of November 2018, the Respondent received a further illness certificate stating that the Complainant was unfit to work due to anxiety/stress until the 4th of December 2018. The Complainant further advised that he would be unfit to work until the 17th of December 2018; the illness certificate was duly forwarded to the Respondent. The Complainant returned to work on the 17th of December 2018 but did not have a return-to-work certificate. The Complainant went home at the request of the Respondent. The Complainant returned to work on the 2nd January 2019.

When the Complainant returned to work he said that he would not continue with the investigation without his solicitor being present. The Respondent advised the Complainant that he would need to take advice in respect of the investigation and would revert to the Complainant once advices were obtained. The Respondent then requested that the Complainant would not attend work pending the advice but confirmed that he would continue to receive full pay from the 2nd January 2019. It was respectfully submitted that this late-in-the-day decision to effectively suspend the Complainant was unfair, and that this action caused the Complainant to lose out on receipt of commission monies from car sales.

On the 3rd of January 2019, the Complainant’s solicitor sent an email to the Respondent seeking clarification of the basis upon which the Complainant was sent home from work and threatening an application to the court should his client not be permitted to return to work. The Complainant

viewed this disproportionate action as being knee-jerk in substance. The Complainant further submits that the decision to effectively suspend the Complainant from his employment was based entirely on a subjective and personal basis and proves on the balance of probabilities that the “investigative team” commissioned to undertake this investigation were not impartial from the outset.

On the 4th of January 2019, the solicitors for the Respondent wrote to the Complainant’s solicitor confirming that they were in the process of taking instructions in order to provide the Complainant’s solicitor with a detailed response.

On the 9th of January 2019, the solicitors for the Respondent responded to the solicitor for the Complainant. By letter of the same date the Respondent wrote to the Complainant advising him that as a result of further inquiries made, it appeared that the Company may have incurred financial detriment as a result of a number of transactions in which the Complainant was involved and

that the Respondent had made a decision to place him on holding suspension.

It was submitted that the Respondent ought to have made any and all assessments which should have been assessed prior to alerting the Complainant of this investigation. This piece-meal approach together with the other flaws as outlined above means that the investigation was flawed from the outset. It is unacceptable that any complainant be accused of further wrong-doings many months after canvassing with a complainant that he/she is under investigation.

The Complainant was invited to an investigation meeting on Monday the 14th of January 2019. On Friday 11 January 2019, solicitors for the Respondent telephoned the Complainant’s solicitor to enquire whether the Complainant would be attending the investigation meeting on Monday the 14th January 2019. The Complainant’s solicitor confirmed that he was meeting his client that evening and his advice to his client would be that he should attend the meeting. On Monday the 14th January 2019, solicitors for the Respondent telephoned Complainant’s solicitor’s office to ask if the Complainant would be attending the investigation meeting that morning. Shortly

after that call, the solicitors for the Respondent received a letter from the Complainant’s solicitor which set out, inter alia, objections to Mr SF being note taker in the meeting. On the 15th of January 2019, solicitors for the Respondent responded to the letter from the Complainant’s solicitor. On the same day, the Respondent wrote to the Complainant enclosing a copy of the terms of reference based on the matters for investigation as set out in the initial letter of the 19th of October 2018 together with a note of additional information gathered requiring further investigation. The note contained queries that the Complainant would be asked to address at the meeting. The Complainant was invited to attend an investigation meeting on the 18th of January 2019.

The Complainant attended the investigation on the 18th of January 2019. At the outset of that meeting, the Complainant requested that he could tape-record the meeting. He was advised that he was not permitted to take a tape recording and would be provided with a copy of the notes. It was respectfully submitted that the Complainant wanted to record the meeting in order to obtain an accurate recording of the meeting as he did not trust the procedure that had been invoked by the Respondent and wished to have safeguards in place.

Permission to tape the meeting, should in the Complainant's respectful submission been permitted. It was alleged that the Respondent met with a work colleague of the Complainant on the 29th

January 2019. Notes from said meeting were used to advance the Respondent’s position against the

Complainant. It should be noted that the Complainant was not, nor was ever provided with an opportunity to cross examine this said colleague, a point which is the cornerstone of any procedure, whether it be at the investigative stage, the disciplinary stage, or indeed the appeal stage of the process.

The purported evidence gathered by the Respondent:

In March 2017 the Respondent bought in a car reg.161MHXXXX for €12,050.00. The buy-in was requested by another Sales Executive. The Complainant sold the vehicle to his daughter on the 3rd of May 2017 for €12,200.00. The washed-out profit on the transaction was €109.75. It was queried whether the Complainant had sought approval to sell the vehicle at below market value. The Complainant’s initial response in writing on the 25 October 2018 was: “I was not aware that I had to ask permission to sell cars to members of my family, so understood that to mean that I did not have to seek approval”.

The Complainant claims to have spoken to one of the Directors in relation to this sale.

In the investigation meeting on the 18th of January 2019, when asked for the Complainant’s response as to whether he requested approval to sell the car to his daughter at below market value, he responded that he already had responded to that query.

The Complainant then proceeded to read a pre-prepared written statement. The Complainant was asked again, although he wished to read out his statement. Despite this, the Respondent re-asked him the question and his response was: - “You [being Director 1] gave me authority.” When asked who gave him authority to sell the vehicle at below market value he responded that: “There was no mention of the market value.” The Complainant drew attention to the Respondent’s Employee Handbook, page 74 which states: “Staff Benefits: The Company offers you the opportunity to purchase at beneficial discounted prices, vehicles, parts and services the Company offers to the retail market. You may purchase vehicle parts at retail price less 15% discount. You may purchase workshop labour at the retail charge out rate less 50%. These benefits will vary from time to time and you will be notified accordingly”.

When asked whether the Complainant had approval to sell the car to his daughter at

below market value, the Respondent alleged that the Complainant said - “I met with a colleague on the 29th of January 2019 and asked him to explain the process expected to be followed if an employee is selling a vehicle to a family member at a discounted price”. The colleague responded: “We would clear the sale with the Director before selling to a family member.” When asked whether the Complainant recalled attending a meeting at which the Director authorised the sale of car 161MHXXXX to his daughter, the Respondent alleged that the colleague responded: “I can’t recall having a formal meeting where the Director authorised the sale.”

Again, it was respectfully submitted that the Complainant was not offered the opportunity of cross-examining this colleague in order to ascertain the veracity of the Respondent’s hearsay assertion of the colleague.

Given the circumstances, and the possible sanctions in this matter, it was respectfully submitted that the weight the Respondent gave to the purported statement from the colleague the Respondent ought to have been aware that such a statement would be opened to be tested by the Complainant or his legal representative. It is further submitted that having a work colleague present at this investigation would have been of no value to the Complainant but would be of great value to the Respondent. The Respondent alleges that when asked if the Director gave approval to sell the car at below market value/cost, the colleague responded: “I do not remember being in attendance at this meeting.” Again, as above it was respectfully submitted that the Complainant was not offered the opportunity of cross-examining the colleague in order to ascertain the veracity of the Respondent’s hearsay assertion of the colleague. Given the circumstances, and the possible sanctions in this matter, it was respectfully submitted that the weight the Respondent gave to the purported statement from the colleague, the Respondent ought to have been aware that such a statement would be opened to be tested by the Complainant or his legal representative. The Respondent will allege that when asked if he could recollect the conversation he had with the Complainant in respect to the sale of the car, that the colleague said: “

[the Complainant] said it would be a good car for his daughter because she nearly had a VW Polo brought out of another garage, but this would keep her in a (brand named). He asked if he could offer the car to his daughter but no discussion was had in regards to price.” The Complainant re-asserts his responses to the above paragraphs in respect of his colleague’s purported statement.

The Respondent alleged that on the 9th of July 2018, the Complainant sold a car reg. 161DXXXX to his daughter for €13,600.00 in exchange for a car 161MHXXXX. This was a direct swap of a vehicle with an Odometer reading of 3,650 for one with a reading of 46,600. The value given for the trade-in of €13,650.00 exceeded the original sale price over a year earlier by €1,450.00. The Respondent will allege that the Complainant’s response to this query was:

“On July 9th, I sold the said car to my daughter. The reason this came about was I had a customer looking for a similar car at the time. I tried to sell her the 161-D-XXXXX that we had in stock since January 2018. The customer did not like the colour that we had in stock, so I used my sales skills and said to her that I could get her a silver car of the same year, different K/M on it for the same price and she was delighted to deal on this car”.

Also, at this time, there was pressure from the Director to reduce stock because the company was having a high stock problem across all four branches and needed to get this down. The Director knew all about this at this time as the Complainant had mentioned it to him. This was not done for financial gain but to sell the car to keep a customer happy and reduce stock as requested by the Director. The Respondent will allege that this transaction may have resulted in the Complainant’s daughter receiving a vehicle A car reg. 161DXXXX which he valued at €16,650.00 in exchange for a vehicle that his daughter had purchased over a year earlier at €12,200.00 (161MHXXXX) despite her having increased the mileage on that car by approximately 32,455 km during the year. When asked to confirm if this was correct, the Complainant stated that he already dealt with this point in writing. The Respondent alleges that the car 161MHXXXX originally sold by the Complainant to his daughter for €12,200, with additional mileage, appears to have been sold to a customer for the higher sum of €14,450.00.

When asked to explain why the car 161MHXXXX was sold to his daughter for €12,200 and then subsequently sold, a year later with additional mileage, to a customer for €14,450.00, the Complainant’s response was that he already responded to that point in writing.

The Respondent alleged that from a review of the dealer management system in respect of

car 161DXXXXX, that the vehicle was brought into stock on 28th February 2018 and not January 2018. It also appeared from a review of the dealer management system that there were a number of other similar cars in stock within the Group. When asked to explain, the Complainant’s response was that he already had responded to that point. The Respondent will allege that when the Complainant was asked at the meeting on the 18th of January 2019 if any of the other vehicles were offered to the same customer the Complainant stated that he already had respondent to that point. The Respondent alleged that when asked by the Respondent at the meeting on the 18th of January as to who pressurised him into selling vehicle at below market value, the Complainant responded that he had no comment to make. The Respondent alleged that on the 11th of July 2018, the Complainant sold a car 161MHXXXX to a customer for €14,450.00 with a trade-in allowance of €1,600.00 against an older car reg 09DXXXX. There was no record of the vehicle being serviced in advance of sale other than an oil and filter change on 12th December 2017 when the odometer reading was 33,465. When asked about this, the Complainant responded in writing on the 25th of October 2018 that “The vehicle was serviced by my daughter in another outlet because at the time our workshop could not take in any work because of staff shortages and outstanding work booked in but it was checked by a member of Respondent staff.”

The Respondent states that an authorised repairer is required to complete a Digital Service Record through the dealer portal so that all the service records are visible to any authorised dealer. The Respondent alleged that he reviewed the dealer portal in respect of car 161MHXXXX and could see no record of the said car being serviced after 20 November 2017. When asked to confirm the name and details of the outlet that the vehicle was serviced by his daughter and to provide evidence of the service carried out e.g. receipt for payment, the Complainant said: “I will not give contact as under GDPR regulations, I do not need to supply you with this as this relates to my daughter”. It is respectfully submitted that it was not for the Complainant to say, and the Respondent should have made this particular query to the daughter instead of the Complainant. The Respondent will allege that they advised the Complainant that for health and safety reasons, that they arranged for the purchasing customer to bring her vehicle back to garage for a Vehicle Health Check. Having checked the service booklet, there was no record of the vehicle being serviced since the 20th of November 2017, when a service was carried out at the Respondent’s garage.

At that time, it was noted that the next service was due at 53,000 k/m or 20 November 2018. The

service reminder sticker on the inside of the windscreen appears to have been altered to show that the next service was due at 63,000k/m.

The Complainant contended that he was a stranger to the latter details and if alleged that he ‘doctored’ the Service Reminder Sticker, he refuted that entirely. The Respondent will further allege that at a meeting on the 9th of July 2018, the Complainant was directed that all tyres under 3mm on sales cars to be replaced with no authorisation required from Sales; Sales vehicles with low mileage and under a year old to get a vehicle health check and an oil and filter change, all other vehicles to go through usual process with a full Sales Service; If salesmen do not give authorisation for work within an hour, Service to ring the Director ; Issues with quality of work in workshop, vehicles to be quality checked; the Complainant to talk to each other about vehicles and no emails to be bouncing around between them. In respect of the preceding paragraph, it was respectfully submitted that hearsay was over-used, to the say the very least. In these circumstances the investigation was being carried out by the Director, the subject matter of which has been alleged to have been policy written by he himself. In these circumstances, it appears that the investigator was effectively investigating himself. Furthermore, the Complainant has asserted that the investigator, signed off

on the selling of the cars, and in those circumstances, ought not to have been appointed the

investigator of this situation. Furthermore, and, again, as mentioned above, the Complainant was afforded the opportunity to cross – examine vital witnesses in this matter.

It was respectfully submitted that the way in which this investigation took place was flawed from the outset. It was submitted that the Complainant was not afforded fair procedures in the Investigation and the subsequent Disciplinary Action. Furthermore, the behaviour of the Respondent when the Complainant intimated that he wished to appeal the decision to dismiss was indicative of

the way in which he was treated from the outset. The hurdle put to the Complainant in order for him to appeal the decision of the Respondent was disproportionate and unfair as it would put him to extra and unnecessary legal expense. At no time was the Complainant appraised of other options in respect of the outcome of the Investigation and Disciplinary procedure. The Complainant disputed the findings of the Respondent, particularly as outlined in the Respondent’s letter of 22nd March 2019. The Complainant contends that the upheld decisions were not proven on the balance of probabilities, and furthermore, because he was never afforded the opportunity

of ever testing any of the allegations that were upheld by the Respondent. It is respectfully submitted that the Respondent did not comply with the terms of Statutory Instrument Number 146/2000 – Industrial Relations Act,1990 (Code on Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000(as amended), Schedules 3 and 4 thereof.

In Redmond on Dismissal Law (Third Edition) (Chapter 16.10) the question of dishonesty is described as:

Dishonesty, no less than “misconduct” is not a term of act.   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.

As the Adjudication Officer in this case my job is not to establish the guilt or innocence of the Complainant. The EAT summarised as follows in Looney and Co Ltd v Looney UD 843/1984:

‘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 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.’

I have carefully considered the arguments presented by both parties and would comment as follows:

The Respondent’s legal representative has presented the case of McKelvey v Iarnród Éireann / Irish Rail [2018] IECA 346. In this case the Court of Appeal found that the circumstances of the case were such that, applying the principles set out in the Burns and Tarrant cases, no entitlement to legal representation arose. Delivering the judgement of the Court, Irvine J made the following comments. “While it is true to say that Mr McKelvey faces a disciplinary inquiry which could lead to his dismissal and which has the further potential to impact on his future employment prospects and his reputation, in this regard he is no different to a very substantial percentage of employees facing allegations of misconduct in the workplace. In my view, the allegation of misconduct made against Mr McKelvey is a straightforward one and I am not satisfied that he has identified any factual or legal complexities that may arise that he should not be in a position to deal with adequately with the assistance of [his trade union representative]”.

In this instance the Complainant was advised that he had an entitlement to be accompanied by a work colleague or a trade union representative.

I am satisfied that a full and thorough investigation was conducted by the Respondent and the Complainant was afforded every opportunity to respond to the findings of that investigation, this included the opportunity to respond in writing with the assistance of his solicitor.

In relation to the points made by the Complainant’s representative regarding the notetaker and the issue of not being granted permission to make a recording of meetings I am satisfied that the note taker’s role was one of note taking and nothing else and in relation to recording meetings I note that the Complainant was issued with a copy of the notes from each meeting.

In the outcome of the disciplinary meeting the Respondent states:

“In view of the seriousness of these matters and the undermining in trust and confidence, I have decided that your employment with XXXXXXXX should be terminated for serious misconduct……..”.

Trust must be regarded as integral to all employer / employee relationships, sometimes an employee is described as belonging to a ‘high trust’ category. However, ‘high trust ‘should be expected from all employees: one cannot differentiate between degrees of trust.

On the question of appealing the decision to dismiss I feel the Complainant’s actions in not abiding by the appeal process i.e. submitting the grounds of appeal in writing prior to any hearing and thus preventing any appeal taking place was a major mistake. More so given the fact that he had legal advice throughout the process.

In An Employee v An Employer ADJ 0000381 (12 April 2017) on the subject of appeals the Adjudication Officer stated:

‘An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction”.

Having carefully considered this case in detail I have decided that the complaint as presented is not well-founded and therefore fails.

The complaint as presented under Section 8 of the Unfair Dismissals Act, 1977 is not well founded for the reasons outlined above.

Unfair Dismissals Act, 1977.