Complainant

Respondent

Parties

Stephen  Nelson

Shannon Transport & Warehouse Company T/A STL Logistics

Representatives

David Byrnes B.L. instructed by Setanta Solicitors

 Stratis Consulting

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-00031393-001

06/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00031393-002

06/10/2019

This is a complaint of unfair dismissal.  The complainant was employed by the respondent as a helper and was paid €580 gross per week (excluding subsistence payments). The complainant is one of 11 employees (Drivers and Helpers) of the respondent who were dismissed for gross misconduct in relation to “unscheduled and undocumented” deliveries to a Public House in Dublin, the Bridge Tavern. At the request of the complainant’s legal representatives, each of the 11 complainants had separate adjudication hearings which took place between 17th May 2022 and 29th November 2022 and individual decisions will issue in respect of each complaint.

The complaints arise as a result of surveillance that was placed on the pub in question following complaints from other pubs who incurred delays in receiving deliveries where the pub in question appeared to be getting regular deliveries. The surveillance is alleged to have shown the complainant(s) dropping kegs into the Bridge Tavern on a number of occasions between January and March 2019. (Specifically, 20 deliveries involving 31 kegs) All documentation and information obtained during the surveillance process is said to have been handed over to the respondent which resulted in an investigation and disciplinary process, the result of which was the summary dismissal of the employees concerned for gross misconduct.

Preliminary Objections

Counsel for the Complainant raised a number of preliminary objections in relation to the submissions of the respondent, namely that separate individual submissions should be submitted in relation to each complainant. Counsel argued that each complaint was separate and stand alone and it was not acceptable that the submissions grouped all of the relevant individuals together to justify individual dismissals instead of addressing each case individually on its own merits. Counsel also stated that generalized submissions were prejudicial to his client and the integrity of the adjudication process was compromised in respect of the manner in which the submissions were compiled and presented to the WRC. Counsel raised further objections in respect of the adjudication hearings and the way they were to take place. These matters are addressed below.

Adjudication Hearings

The complaints were initially scheduled to be heard remotely in two sittings during the Covid 19 restrictions in May 2021. There were initial objections from the complainants’ legal representatives in relation to the complaints being scheduled in two groups rather than being scheduled individually. The complainants’ representatives sought 11 separate adjudication hearings, the recusal of myself as the adjudication officer with seisin of the complaints and 11 separate adjudication officers to hear the complaints when rescheduled. It was agreed that 11 separate adjudication hearings would be scheduled. The recusal request was refused, as in my mind, no prejudice occurred to the complainant as a result of the respondent’s general submissions, and I did not accept Counsel’s view that I was prejudiced against the complainant as a result of reviewing documentation in relation to the complaints prior to the initial hearing or that the integrity of the adjudication process would be compromised by a single adjudication officer hearing all complaints. In my view, there was no reason to prevent me hearing all complaints individually. Having considered Counsel’s application, I decided that it was appropriate for me to retain seisin of the complaints and to hear each one separately. Other delays in hearing the complaints ensued because evidence under oath/affirmation would be required and legislative changes were expected in relation to that issue as well as issues surrounding the covid 19 pandemic and the unexpected unavailability on occasion of all parties.

The respondent relied on written submissions and documentation relating to the issue at hand. The respondent’s position is that the dismissal is not unfair.

General submissions

The respondent stated that it became aware of unscheduled and undocumented deliveries to the Bridge Tavern between January and March 2019. The respondent stated that the background to the deliveries was that some pubs in the locality were claiming that they were subject to delays in getting deliveries whereas the Bridge Tavern was getting deliveries “every other day.” Surveillance was placed on the premises by Diageo Security and the findings of the surveillance was passed on to the respondent for consideration and for management to address thereafter.

The respondent subsequently identified 15 staff who were seen as being directly involved. The respondent stated that it interviewed the relevant staff and established that the staff in question were at the Bridge Tavern on the dates in question, did not have any records/documentation in relation to the deliveries and that this occurred on days when the Bridge Tavern was not on the scheduled delivery route. Based on this, the respondent commenced a formal disciplinary process, and all relevant staff were suspended with pay pending the outcome of same.

The respondent stated that the staff in question were unable to recall the specifics of the deliveries and that all staff stated that if the deliveries were made off schedule and undocumented, it was due to a swop and was done following a request from another pub on the route. It was accepted by all that the kegs delivered to the Bridge Tavern would had to have come from a pub that was on the delivery route on a particular day.

To seek clarity on the issue, the respondent used a private company to obtain clarification from almost 70 pubs in relation to whether they were involved in the “swop” process or if they had ever asked delivery crews to drop off owed kegs to other pubs. The respondent contends that by virtue of the information obtained, no other pub was involved in swop arrangements nor did any of the pubs ask delivery crews to drop off kegs that were owed to other pubs. On the basis of this information the respondent stated that the reasons put forward by the delivery crews lacked any credibility whatsoever.

In respect of the disciplinary process, the respondent stated that the complainants had been informed in writing of the charges against them and had been given all relevant information, including the witness statements from the 70 pubs and copies of the photographic evidence in relation to the deliveries in question. The respondent confirmed that representation was facilitated at all stages of the process and all minutes of meetings were provided at all stages of the process. In addition, each of the complainants was given the opportunity to provide any other information that may help them in relation to the deliveries in question but that this had not been done.  It was decided following the disciplinary process that each of the staff involved were guilty of gross misconduct and while other sanctions short of dismissal were considered, the respondent’s position was that the bond of trust had been irretrievably broken and the appropriate sanction was summary dismissal for gross misconduct. In line with the disciplinary procedures, the dismissals were appealed and were conducted by an external HR company. The dismissals were upheld on appeal.

Of the 15 staff who were ultimately dismissed, 13 brought complaints to the WRC alleging unfair dismissal, 11 of which were legally represented and a further two were represented by their Trade Union.

Submissions specific to the complainant

The respondent stated that the complainant was observed making one unscheduled and undocumented delivery to the Bridge Tavern on 22nd January 2019. The respondent stated that the subsequent disciplinary process was carried out in line with the Company’s own procedures and in compliance with the Code of Practice on Grievance and Disciplinary procedures (S.I. 146 of 2000). The respondent stated that the reasons put forward by the complainant; that it was part of a swop arrangement and was made at the request of another pub lacked any credibility and on the balance of probabilities, the complainant was guilty of the charges put to him. The respondent contends that it acted reasonably in its decision to dismiss the complainant for gross misconduct and following an appeal, it’s decision to dismiss the complainant was upheld.

Burden of Proof

The respondent accepts that as the fact of dismissal is not it dispute it is for the respondent to prove that the dismissal was not unfair. The respondent’s positions is that it acted in line with its own procedures and S.I. 146 of 200 at all times and that’s its decision to dismiss for gross misconduct was in line with the provisions of 6(4)(b) of the Unfair Dismissals Act, 1977 and was within the range of reasonable responses of a reasonable employer. The respondent further contends that as the unscheduled and undocumented deliveries in question were accepted to have taken place and as it was not in compliance with company procedures, the complainant(s) have contributed 100% to the dismissal.

Mitigation of Loss

The respondent cited the case of Sheehan v Continental Administration Company Limited (UD/8/99) in respect of the requirement to mitigate losses following a dismissal. The respondent stated that it will seek evidence from each complainant to establish if the requisite amount of time each day was spent seeking to find alternative employment.

The complainant’s position is that the dismissal was unfair. Counsel for the complainant cited a number of procedural flaws throughout the investigation and disciplinary process and inaccuracies put forward by the respondent in relation to the deliveries in question. Counsel also stated that the respondent’s decision not to give oral evidence under oath or affirmation at the adjudication hearing meant that it could not discharge the burden of proof that it bears in relation to proving that the dismissal was unfair, whereas the complainant and his colleagues had all given evidence under oath/affirmation and this evidence had been challenged by the respondent’s representative.

Counsel strongly asserted that no admissible evidence had been put forward by the respondent in relation to the assertion that the complainant and his colleagues were observed on 20 occasions delivering a total of 31 kegs to the Bridge Tavern over the three-month period in question and that this was theft resulting in loss and damage to the company. Counsel cited the failure of the respondent to give any evidence on the matter or to bring forward the relevant people to give their evidence. Counsel for the complainant stated that respondent had asserted that the complainant and his colleagues were complicit in stealing the product in question. Counsel contends that the respondent, throughout the disciplinary process failed to inform the complainants that there were no shortages either in respect of delivered products or payments for same and that there were no complaints from any pub and no financial loss to the company. It is also the complainant’s position that throughout the disciplinary meetings, senior management informed the complainant that his recollection relating to swop arrangements could not be corroborated, yet it transpired that all staff in question had conveyed this same position to management at the time.

Counsel further contends that the purported photographic and documentary evidence have not been proven by the respondent and should not be accepted. Counsel contends that the throughout the disciplinary process, alleged photographic evidence were of poor quality, illegible, had dates changed and in many cases did not show what was alleged by the respondent.

In relation to the alleged breach of delivery procedures, counsel contends that no procedures were given to the complainant and his colleagues nor were they put forward at the disciplinary process in respect of the issues that led to dismissal for gross misconduct. Counsel’s position is that the complainant and his colleagues were not aware of any procedures on the matter that led to their dismissal and the issue of swops was known to the respondent as had been confirmed to senior management by a number of staff who had signed a document post dismissal confirming same.

Counsel stated that the complainant and his colleagues gave evidence individually at separate adjudication hearings in relation to the practice of swops and that this practice was confirmed to have taken place at the company and continues to take place. Counsel asserts that the respondent was well aware that swops did and still do take place.

In respect of the 70 statements of the pubs in question, Counsel does not accept these documents as admissible as neither the author of the statements or the people who allegedly made the statements were available to verify the documents as authentic. Counsel’s view is that much of the submissions and documentation submitted by the respondent amounts to nothing more than inadmissible hearsay and should be disregarded.

In respect of the complaints being observed delivering products to the Bridge Tavern, Counsel for the complainant contends that the reasons for the deliveries, if they did indeed take place, on the dates and by the staff in question was explained by the complainant in evidence. The respondent’s submissions relating to the deliveries does not meet the same standard of proof as the direct evidence provided by the complainant.

Procedural Flaws

Counsel for the complainant contends that the complainant was not in receipt of company procedures in advance of or at the time of the disciplinary process. While the respondent claimed that all procedures, policies and minutes were provided to the complainant by the time the process concluded, the complainant was not in the possession of the relevant documents at the relevant times and that this would have prevented proper instruction and preparation in relation to the disciplinary process. Counsel also stated that the complainant had not met the trade union official that management confirmed was representing him nor had any opportunity been given to the complainant in advance to adequately prepare or give instructions to his representative.

It is also claimed that no prior investigation was carried out by the respondent and that it simply proceeded to a disciplinary process on its view that the complainant and his colleagues were complicit in theft resulting in loss to the company. Counsel contends that this was the position management proceeded with and dismissed the complainant for even though the respondent has now accepted that it was unable to point to any theft or loss to the company or to any of Diageo’s customers and no complaints were made in relation to same.

Counsel also pointed to the fact that the Bridge Tavern itself was never interviewed as part of the process as the respondent had apparently been told by Diageo that it was addressing the issue directly with the Bridge Tavern. Counsel also stated that the respondent has since confirmed that the issue of unscheduled and undocumented deliveries as well as the issue of swops is not included in company procedures in relation to issues that constitute gross misconduct which can lead to summary dismissal.

Evidence and Cross examination

The complainant gave evidence by affirmation at the adjudication hearing. The complainant stated that he began working for another company in 2005 and became an employee of the respondent in 2011 following a TUPE transfer at that time. The complainant stated that he was employed as a helper to deliver kegs to pubs. The complainant stated in evidence that he was called in to a meeting with management on or about 28th March 2019 in respect of a delivery on 22nd January 2019. The complainant stated that management told him that the contract was “under pressure” and that the Operations Manager had to “keep Diageo happy.” The complainant stated that the dates that were put to him were incorrect as he was absent from work on at least two occasions when it was suggested to him that he had been delivering to the bridge tavern. The complainant stated that no investigation was carried out by the Company and that once Diageo made contact in relation to its surveillance, management had its mind made up and had no interest in establishing the facts or vindicating the employees of any wrongdoing. The complainant outlined a number of procedural errors on management’s part in relation to its disciplinary process stating that he had not been informed of the charges against him prior to the disciplinary meetings and while there were supposed statements from 70 pubs on the route, the bridge tavern had not been approached by management in relation to the issue. The complainant stated that he accepted he may have delivered to the bridge tavern off schedule and if he did, it was at the request of another pub as part of a swop arrangement that was a long-standing practice. The complainant did not accept management’s assertions that it was unaware of this practice at the material time. The complainant further stated that photos were not provided until the second or third disciplinary meeting and when they were given, they were black and white, had no date stamps and were of poor quality. The complainant further stated that he was not in receipt of any company procedures until the disciplinary process had concluded and the same members of management were involved throughout all stages of the process leading to his dismissal. The complainant further outlined discrepancies in the use of tracker information which had also been provided late in the process with no time to prepare or offer any clarification. The complainant stated that his appeal was unsuccessful an even though the wage negotiations/IR process taking place at that time were not mentioned at the appeal, the appeal decision stated that the IR process wasn’t a factor in the dismissal.

In cross examination, the respondent stated that it was not aware, at the time of the investigations, of the swop arrangements and that all information in relation to the other pubs on the delivery run had been given to the complainant and all pubs questioned had denied any involvement in any swop arrangement. The respondent queried how the deliveries could have been swops. In answering this question, the witness stated that only the owners of the other pubs had been interviewed by Diageo security. The respondent’s representative put it to the witness that if he was not in receipt of procedures during the disciplinary process, he should have raised it at the time. The respondent also put it to the complainant that the quality of the photographs provided was irrelevant as the complainant had not denied that he had been at the bridge tavern. The respondent concluded its cross examination by putting it to the complainant that the suggestion of a swop arrangements happening regularly would undoubtedly add additional work and time on to each delivery run, yet this had not been mentioned during the pay negotiations that were taking place which is surprising in a situation where the delivery crews were engaged on a work to finish basis.

As previously stated, each of the 11 complaints were dealt with individually at separate adjudication hearings and individual evidence was provided at each one. The complainant in the within complaint has 15 years’ service and was dismissed for gross misconduct in relation to one unscheduled and undocumented delivery of product to a named Public House, the Bridge Tavern on 22nd January 2019. The first meeting in relation to this occurred on 26th March 2019 when the General Manager in charge of the Diageo account sought clarification from the complainant in relation to his memory of the delivery in question. The parties have provided extensive written and verbal submissions and the complainant gave oral evidence at the adjudication hearing.

At the conclusion of the adjudication hearings into the complaints, I informed the parties that it was my intention to base each decision on the following:  a) the respondent’s decision not to give evidence at the hearings despite bearing the burden of proof in relation each complaint, b) whether the respondent acted reasonably in dismissing each complainant, c) whether the actions of each complainant constituted gross misconduct and d) if the dismissal was a proportionate sanction in all of the circumstance of each situation. Both parties accepted this approach.

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,

Burden of Proof

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

6(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

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……..

The respondent contends that it acted reasonably in dismissing the complainant for gross misconduct in accordance with Section 6(4)(b) of the Unfair Dismissals Act, 1977 and that it in the circumstances of the complaint, and where alternatives to dismissal were considered but deemed not to be appropriate, the dismissal was the proportionate sanction to the incident having considered the matter in totality.

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.

It should once again be pointed out that despite the suggestion of theft and loss throughout this complaint, the respondent has confirmed that everything balanced – deliveries and payments to all clients with no complaints made. On that basis, I must decide if the charge of unscheduled and undocumented deliveries meets the standard to summarily dismiss an employee for gross misconduct.

Subsistence Payments

The parties are in dispute in relation to whether a weekly payment of €70.05 made to the complainant should be included in the earnings with respect to calculating losses attributable to the dismissal. The complainant’s representative contends that the payment in question should be classed as earnings whereas the respondent’s representative contends that the payment in question is a subsistence payment, which is not subject to revenue deductions, and as such is not earnings for the purpose of loss calculations.

On this issue I note the provisions of Section 1(1) of the Payment of Wages Act, 1991 in respect of the definition of wages which states as follows:

wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

I also note the provisions Reg 4. Of the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 which provide as follows:

In the case of an employee who is wholly remunerated in respect of the relevant employment at an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration in respect of the relevant employment does not vary by reference to the amount of work done by him, his weekly remuneration in respect of the relevant employment shall be his earnings in respect of that employment (including any regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week before the date of the relevant dismissal in which he worked for the number of hours that was normal for the employment together with, if he was normally required to work overtime in the relevant employment, his average weekly overtime earnings in the relevant employment as determined in accordance with Regulation 5 of these Regulations.

Having considered the provisions of the legislation above, I am satisfied that the payments in question, which were made to the complainant in respect of subsistence and were not subject to tax for that reason, are not bonus or allowance payments and are instead a payment in respect of expenses with regard to subsistence while at work. Accordingly, I find that these subsistence payments do not come within the definition of wages and should be excluded from the calculation of loss of earnings.

Summary

In summary I find that the respondent has failed to discharge the burden of proof that it bears in relation to the complaint of unfair dismissal. The General Manager who was central to this issue was present at all adjudication hearings yet chose not to give any evidence in relation to the matter. I note the case of Kiely v Minster for Social Welfare [1977] IR 267 wherein, Henchy J stated:

 “Audi alterum partem means that both sides must be fairly heard. That is not done if one party is allowed to send in his evidence in writing, free from the truth eliciting process of a confrontation which is inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross examination. The dispensation of justice, in order to achieve its ends, must be even handed in form as well as content”.

In my view, the respondent, in relying on its written submissions and the documentation surrounding the investigation and disciplinary process did not meet the requirements as set out above in circumstances where the complainant gave evidence under oath/affirmation and was challenged on his evidence in cross examination by the respondent’s representative. For that reason, I find that the direct evidence of the complainant is to be preferred.

In relation to reasonableness, I find that the actions of the respondent in dismissing the complainant was not within the range of reasonable responses of a reasonable employer. As previously clarified to the parties, it is not the role of the Adjudication Officer to establish guilt or innocence on the part of the complainant in relation to the circumstances surrounding the dismissal, or indeed to solve the mystery of what was happening in relation to the deliveries. It is also not the Adjudication Officer’s role to substitute his/her decision making for that of the employer. The Adjudication Officer is required to establish if the employer acted within the range of reasonableness in relation to its decision to dismiss the complainant.

Insofar as the claimant in the within complaint is concerned, his direct evidence was that on one occasion is respect of one keg, he delivered a keg to the bridge tavern as part of a swop arrangement. The complainant confirmed that swops take place and have done since he was employed at the Company and its predecessors and in his mind, he had done nothing wrong. In my view and having considered the information obtained at the adjudication hearings it is clear that swops have taken place in the past and continue to take place.

I note the respondent’s position that it was unaware at the time of the disciplinary processes that swops did take place but when questioned at the adjudication hearing on the matter, the respondent accepted that swops in the conventional sense may well have taken place, and that there is no issue with that, but in this case all kegs were going into the Bridge Tavern and to the best of the respondent’s knowledge none were going out. In addition, the respondent confirmed that the issue of swops is not currently included in its procedures as something that is prohibited nor is the issue of undocumented and unscheduled deliveries included in procedures as an example of gross misconduct that may lead to summary dismissal.

As confirmed by the respondent at the adjudication hearings, all clients received their deliveries, all deliveries were paid for, and no complaints were made by any clients in relation to delivery shortages. The respondent stated that it was unable to find any discrepancies in relation to product delivery or payments made. While there may have been a suggestion of wrongdoing on the part of the complainant and his colleagues and while loss and damage to the Company was mentioned during some disciplinary meetings, the respondent confirmed that the complainant and his colleagues were charged with and were dismissed for gross misconduct for making “unscheduled and undocumented” deliveries to the Bridge Tavern. As clarified earlier, Gross Misconduct relates to such bad behaviour that the employer would not be reasonably expected to tolerate for a minute longer.  On the basis of the complainant’s evidence on the matter and in relation to the reality surrounding swops, I do not find that the complainant’s actions amounted to gross misconduct especially where none of these practices were included in the respondent’s disciplinary procedures and are still not included more than three years after the dismissal.

In relation to proportionality, I do not find that dismissal was the proportionate sanction to an employee with almost 15 years’ service having regard to the situation as a whole. I note that a number of staff still employed by the respondent signed a document confirming that swops take place and have done for many years. The preferred evidence in this complaint is that the complainant dropped a keg into the bridge tavern on the day in question as part of a swop arrangement. This in my mind is not a situation where a long-standing staff member deserves summary dismissal for gross misconduct.

Redress sought.

The complainant is seeking compensation in relation to his complaint.

Mitigation of Loss

The complainant is required to mitigate his loss following dismissal. In this case the complainant’s loss was quantified at €13,349.82 The parties are also in dispute in relation to the level of losses with the respondent of the view that the complainant’s loss amounts to €12,740.00. In relation to securing alternative employment and seeking to mitigate his losses, the complainant was unemployed for 12 weeks following his dismissal and remains employed since approximately September 2019 in a position that is paid at a lower rate than when the complainant was employed by the respondent. I note that there was no evidence of further efforts on the complainant’s part to continue to seek to mitigate his losses by sourcing higher paid employment since his dismissal.

Having considered the submissions of both parties, the evidence of the complainant and all of the case law cited, I find that the complaint is well founded. The respondent is directed to pay the complainant €6,500.00 in compensation which I consider to be just and equitable in all of the circumstances of the complaint.

Unfair Dismissal, Burden of Proof, Gross Misconduct, Reasonableness, Proportionality,

Case Law cited by the respondent:

Looney and Co Limited UD843/94

Gary Boyle v An Post 2015/6739P

Sheehan v Continental Administration Company Ltd UD/8/99

Case Law cited by the complainant:

Frizelle v New Ross Credit Union Ltd [1997] IEHC 137

Looney and Co Ltd v Looney UD 843/1984

Donnelly v Arklow Pottery Ltd UD 572/1990

Bunyan v United Dominion Trust [1982] ILRM 224

The Governor and the Company of Bank of Ireland v James Reilly (2015) IEHC 241

Abdullah v Tesco Ireland plc UD 1034/2014

Noritake (Irl) Ltd v Kenna UD88/1983

Martin v Audio Video Services Centre Ltd UD 617/1991

Vitalie Vet v Kilsaran Concrete, Kilsaran International Ltd [2016] ELR 237

Lennon v Bredin M160/1978

Doyle v JJ Carron and Co Ltd UD 236/1978

A v B [2003] IRLR 405

Re Haughey [1971] IR 217

Kiely v Minister for Social Welfare [1977] IR 267

The State (Gleeson) v Minister for Defence [1976] IR 280

Bessenden Properties Ltd v Corness [1974] IRLR 338

Fay v The Order of Hospitalers of St John of God UD 92/1980

AG Bracey Ltd v Iles [1973] IRLR 210

Flynn v McFarlane Plastics Ltd UD 553/2005

Zambra v Duffy UD 154/1978

Sheehan v Keatings Bakery UD 738/1989

McGuirk v Shamrock Oil Supplies Ltd UD 528/1996

Merrigan v Home Counties Cleaning Ireland Ltd UD 904/1984

An Employee v An Employer UD 1181/2010

Collins v HP CDS Ireland Ltd UD1713/2010