Complainant

Respondent

Parties

Patrick  Murphy

Coca-Cola HBC Ireland Limited t/a  Coca-Cola

Representatives

Colleen Minihane SIPTU

Ms Sara Jane Walsh BL instructed by McCann Fitzgerald

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-00045024-001

05/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00045040-002

05/07/2021

The Complainant commenced employment with the Respondent on 16 November 2000 as an Area Customer Developer where he earned €3,300 gross: net €2,932, on a monthly basis. He submits that he was unfairly dismissed by way of an allegation of falsification of records, which he denies. He also claims he was not given the statutory minimum notice.

The Respondent denies both claims and further submits a preliminary application that the complaints were submitted out of time.

Preliminary Issue – Complaints out of Time.

The Respondent submits that it is well established that the period for submitting such  claims is six months from the date of dismissal, or twelve months where reasonable cause is shown. The Complainant’s employment was terminated on  the 4 September 2020. Therefore, the Respondent contends, as a matter of law, that the Complainant’s claim,  relating to his purported unfair dismissal from his employment under the legislation, is grossly outside of the prescribed time limit (there being 10 months between the termination date and receipt of the Claim Form by the WRC) and thus  the Adjudication Officer has no jurisdiction to entertain the claim.

Furthermore, the Respondent submits, that the Complainant was represented by SIPTU in the disciplinary and appeal stages of the internal process. The Respondent submits that  the Complainant and his representative would be fully aware that the clock began to run from the date of termination of employment, namely 4 September 2020 and would be aware of  the six-month time limit. As the Complainant had the benefit of independent professional advice in relation to his rights and on the procedures for making complaints under the unfair dismissal Acts, the Respondent submits  that reasonable cause for the delay cannot be logically found to exist. In the absence of any other reasonable cause which would have prevented the Complainant from submitting his claim to the WRC within the six-month time limit, the Respondent asserts that  the claim must be considered statute-barred from progressing to hearing.

The Respondent opened  the Labour Court Decision of Cementation Skanska (Formerly Kvaerner Cementation) Limited and Tom Carroll DW DWT0338, where the timeframe for lodging a claim under Section 28 of the Organisation of Working Time Act was considered.  The following passage sets out the test in relation to delay:

It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.”

 The Respondent further cites  A Driver -v- A Fuel Provider ADJ-00026250,  where numerous claims (including unfair dismissal) were submitted to the WRC some 11 months and 12 days post termination. The complainant unsuccessfully argued that he had suffered ill health as a consequence of his working conditions and this ill health prevented him from submitting his complaints immediately after he left the employment. He submitted a medical report to support this argument. The adjudicator noted that the medical report stated that the employee was back to normal after 6-8 months, but that a further 3 months elapsed before the complaints were submitted to the WRC. For this reason, the adjudicator held that the employee failed to show ‘reasonable cause’ and he did not have jurisdiction to hear the complaints.

The Respondent cites  A Ministerial Driver v A Government Department (ADJ-00014494) where  the WRC had  to consider whether it had jurisdiction to hear a claim for unfair dismissal in circumstances where the Complainant form was lodged one day outside the initial six-month time limit. The Respondent argued that the Complainant had at all times been professionally advised by most able Trade Union officers and the failure to lodge the complaint within the six-month time limit was not an excuse to grant an extension. The Adjudication Officer agreed that the claim was out of time and that the Union in question were not novices and a tactical calculation to delay the lodging of the claim did not amount to an adequate reason to grant an extension. The Respondent submits that  In the circumstances outlined heretofore, the Adjudication Officer should  find that the Complainant’s  claims are  out of time.

Substantive Issues:

CA-000450-001: Unfair Dismissal.

The Respondent is a major drinks manufacturer in Ireland, and on a global scale. One aspect of the Complainant’s role was to carry out scanning of the company’s live assets at customer sites. The scanning function is used by the Respondent to keep track of their live assets, and they are to be informed if these assets are lost/ stolen/ moved. The employees are given specific routes and they are responsible for the assets being scanned along these routes.

 In the first quarter of  2020 an issue arose regarding  the Complainant’s scanning record in the previous quarter. At this time the Complainant was covering a colleague’s route as well as his own when the anomalies occurred. Once flagged on an internal audit system, a thorough investigation took place in July 2020 followed by a disciplinary process which ultimately resulted in the Complainant being summarily dismissed for gross misconduct on the 4  September 2020. The Complainant invoked his right to appeal this decision, and an Appeal hearing was subsequently conducted in October 2020 which upheld the original outcome.

 It is the Respondent’s position that at all times during the course of the investigation, the disciplinary and the appeal processes, the Complainant was afforded due process and fair procedures. The Respondent determined that as an incident occurred amounting to gross misconduct on the part of the Complainant, this resulted in irreparable damage to the trust and confidence between employer and employee to the degree that summary dismissal was proportionate and warranted.

The Respondent  submits that the gross misconduct perpetrated by the Complainant   stemmed from his breach of the Respondent’s Code of Business Conduct (COBC). The breach related to inaccurate reporting carried out by the Complainant in relation to 38 assets in 19 Outlets which had a value of €138,000.0. The purpose of the Code is to protect the Respondent’s corporate reputation, to ensure compliance with their legal and regulatory obligations as a listed company and failure to adhere to Code in respect of business records distorts the Respondent’s inventory records and reporting targets if over or under-reported; all of which are considered sufficiently serious.

The Respondent submits that the Complainant received training in the COBC just three months in advance of breaches of the regulations. The relevant COBC regulations  were listed as follows:  

·         Accurate record-keeping and reporting of financial and non-financial information reflect on our corporate reputation and are an important part of our legal and regulatory obligations as a listed company. They are the cornerstone of our corporate Integrity which is one of our core values. Accurate record-keeping and reporting are also necessary to assess individual performance and assess compensation for all employees fairly, based on merit and actual results.

·          The term “business record” is interpreted broadly. Every corporate document, even an apparently insignificant one, must be complete and accurate.  Example of Business Record – Cooler Scanner

·         Example of Code Violation – Performing false cooler scanning

 Always make sure that you record and document business transactions properly and correctly, namely: in the right time period, with the right amount, authorised internally by the appropriate persons, and describing the true nature of the transaction.  No one, no matter how senior in the organisation, is entitled to violate the Code or to give you instructions to do so. Failure to comply with the Code by any employee is treated very seriously and may result in disciplinary action, up to and including dismissal.

 Ms Nadia Paun, Area Code of Business Conduct & Compliance Audit Manager, invited the Complainant to an investigation meeting to be held virtually on the 16th of July. In this invitation email, Ms Paun outlined her role and indicated to the Complainant that she was investigating alleged fictitious scanning. The Complainant was advised that he could be accompanied to the meeting by a trade union representative or work colleague. In light of the above, the Respondent submits that  the Complainant is incorrect in his assertion he was provided with no prior information as to the purpose of the meeting – on the contrary, he knew that he was meeting with an Area Code of Business Conduct & Compliance Audit Manager and that he would be questioned on alleged irregularities in relation to scanning for the fourth quarter of 2019.

 Ms Paun conducted  the investigatory meeting on  16  July 2020. The Complainant was provided with the scanning anomaly records. The Complainant was advised that if he had any questions or new additional information subsequent to the meeting that Ms Paun was available to him and was also notified of his ability to contact the Employee Relations Manager . The meeting minutes were prepared and circulated to the Complainant who agreed their content. A copy of the meeting minutes together with the Complainant’s acceptance of same were exhibited.

 Thereafter by way of letter dated 31 July 2020 Ms Paun notified the Complainant that as a result of the investigation “It was reasonable to conclude there is sufficient evidence to uphold the allegations.” The letter also set out her consideration of the facts and advised the Complainant that HR would be in contact the appropriate next steps under the Respondent’s disciplinary policy which would require him to attend a disciplinary meeting.

Summary of the Evidence of Mr Clive Allen, Sales Manager – Chair of the Disciplinary Committee

The witness gave evidence under affirmation. The witness testified that on 31  July 2020 the Complainant was invited to a virtual  disciplinary hearing which was held on 25 August. The Complainant was accompanied by a SIPTU representative.  The witness was accompanied by a note taker. The minutes of the meeting were exhibited. The Complainant accepted the minutes as accurate.

The record of the anomalies was exhibited. The Witness described to the Complainant at the meeting the physical impossibility of scanning at locations where there were significant distances between locations but where the times differences were in single minutes between locations. The Complainant had made an argument that the Geocodes imputed in the system were incorrect, but the witness gave evidence that this was highly improbable. The witness found that the responses of the Complainant to be implausible.  The witness described how vital it was for the Respondent company to accurately identify their assets because they were regularly audited. He did not believe that the Complainant had given a plausible account for the anomalies, the value of which was €138,000.

The witness advised the Complainant at the conclusion of the meeting that he would confirm what sanction, if any, was appropriate in line with the Disciplinary Policy. On 4 September 2020 a disciplinary outcome meeting took place. The Complainant was accompanied by a SIPTU representative

During the Disciplinary meeting the witness informed the Complainant that the  submitting of false information in company reports amounted to conduct which was  considered a breach of the COBC and was considered to be  gross misconduct. No mitigating circumstances were found, and summary dismissal was selected as sanction owing to the seriousness of the offences. The  Complainant was advised of his right to Appeal.

In cross-examination the witness accepted that there was no direct effect of an erroneous audit nor otherwise from the scanning anomalies that were identified, and moreover that  no financial gain accrued to the Complainant from the alleged actions.  

Summary of the Evidence of Mr David Junk, Senior Quality and Safety Manager and Appeals Person:

The witness gave evidence under affirmation. The Disciplinary Appeal Meeting took place on  9  October 2020 where he was accompanied by a note taker. The Complainant was accompanied by a SIPTU representative. The minutes of the meeting   were circulated and agreed later by the Complainant . These were exhibited by the Respondent. The witness stated that it was his first interaction with the Complainant. All documentation related to the appeal was exhibited at the hearing. The witness  considered the findings and gave the Complainant the opportunity to address the issues that led to his dismissal. He upheld the dismissal decision in the following way in his communication to the Complainant: “As there is no reasonable explanation provided, this matter has been deemed as falsification of company records and is breach of our Code of Business Conduct”.

In cross-examination the witness did not accept  that there were mitigating circumstances in that the Complainant was covering someone else’s work and that he had twenty years of good behaviour prior to the incidents described.

Legal Argument:

The Respondent cites  Section 6(1) of the Unfair Dismissals Acts (the Act)  where it provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

It further cites  Section 6(4)(B) of the Act where it  provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

The Respondent refers  to  Section 6(6) where it provides that,

“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 [6](4)”

The Respondent cites Section 6(7) where it provides that in determining whether a dismissal is unfair, regard may be had:

a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and b) to the extent (if any) of the compliance or failure to comply…with the procedure…or with the provisions of any code of practice…”

The Respondent cites Noritake (Irl)Ltd v Kenna (UD 88/1983)  where it set  out  the criteria determining reasonableness.

The Respondent cites the Employment Appeals Tribunal in  of Desmond Brennan -v- Institute of Technology Carlow UD281/2000, where it was  stated that,

“…“gross misconduct” must be something very serious indeed, perhaps criminal or quasi-criminal in nature.”

On the test to determine  proportionality of a dismissal as a sanction, the Respondent cites  Bank of Ireland v Reilly [2015] IEHC 241, where Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view.’

The Respondent submits  that in matters such as these the correct test is to determine whether any reasonable employer would have dismissed the Complainant and it is not for the Adjudication Officer to substitute their view for that of the Respondent. The Respondent submits that the decision to dismiss may have been harsh but that it comes within the band of reasonable responses.

The Respondent further cites  Bunyan -v- United Dominions Trust (Ireland) 1982 ILRM 404, where the EAT endorsed and applied the view in the case of N.C.Watling Co Limited -v- Richardson 1978 IRLR 225 EAT (ICR1049) where it was stated;

“The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether, on the evidence, before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded’’.

The Respondent cites   A General Operative v An Airline Operator ADJ-00017429  where the complainant’s dismissal for a single infraction over the course of an 18-year unblemished employment record with the Respondent was accepted by the Adjudication Officer as sufficient to amount to gross misconduct warranting summary dismissal and the Complainant’s claim for unfair dismissal ultimately failed as the Respondent acted reasonably and fairly in accordance with section 6(7) of the Act.

The Respondent cites Modupe Abdullah -v- Tesco Ireland Plc UD1034/2014 where an employee’s s misuse of a €10 voucher which resulted in her summary dismissal was unfair under the Acts, bearing in mind the “band of reasonableness” test. The Respondent submits that similar  to the current case, the employee in Modupe had long service (9 years) had an unblemished record but had awareness of the policy which she failed to adhere to, had misled the investigation and disciplinary process and damaged the essential bond of trust between the employer and employee. The Tribunal unanimously found that the decision to dismiss came within the band of reasonable responses of the reasonable employer.

Mitigation of Loss:

On the submission by the Complainant on mitigation of loss, the Respondent submits that whilst the dismissal took place during Covid-19 restrictions, the Complainant did not make adequate efforts to mitigate his loss, particularly when it came to opportunities that would have risen for the Complainant within the retail sector, which it contends, was flourishing at the time of the restrictions.

The Respondent cites the following extract from Redmond on Dismissal Law, Desmond Ryan (Bloombury Professional, 2017) at Paragraph 24.74:

“In Sheehan and Continental Administration Co. Limited the EAT endorsed the position set out in the Second Edition of this work that “a Claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work …. The time that a Claimant finds on his hands is not his own, unless he chooses it to be, but rather (is) to be profitably employed in seeking to mitigate his loss.” The Respondent submits that this  passage was recently adopted and applied by the Workplace Relations Commission in deeming a complainant  to have made insufficient effort to mitigate his loss in An Employee v An Employer ADJ-00005398 (6 July 2017).

The Respondent further submits that the Complainant’s conduct contributed to his dismissal. The Respondent contends that the Complainant here  was reasonably found to have breached the COBC by failing to adhere to the accurate procedure and in the view of the Disciplinary Chair provided contradictory and misleading answers in response to the anomalies presented.

The Respondent argues that  the percentage of “fault” for the dismissal should be factored into any award should it be found that there was an unfair dismissal.

CONCLUSION:

 In conclusion, the Respondent submits that the Complainant’s complaint in relation to Unfair Dismissal claim is grossly out of time and the WRC does not have jurisdiction to entertain it.

Without prejudice to this  position, the Respondent submits that the dismissal of the Complainant was both procedurally and substantially fair. The Respondent contends that  Complainant was only dismissed on foot of a comprehensive investigation, disciplinary and appeal process. The Respondent submits that the sanction of dismissal was a proportionate outcome and was well within the range of reasonable responses available to the Respondent.

Preliminary Issue – Complaints out of Time.

The Complainant’s representative, Ms. Colleen Minihane, made a written submission and gave evidence under affirmation. She stated that the complaints should be  deemed to be  within the statutory timeframe because the case was originally submitted on 10 September 2020 and asserted that  due to an electronic failure in the Workplace Relations Commission (WRC), the complaints were not received.

She stated that the forms were created electronically on 10 December 2020 and that the forms were printed and scanned and then  sent to the Complainant by email. The purported forms were exhibited. She presented  a copy of a complaint  form with the requisite details associated to the instant case,   which had the box showing  ‘Submitted’.   Ms Minihane  stated  that the WRC stated that they had not received the forms in December 2020, and she then  re-submitted them on 5 July 2021.

She stated that  that there were problems with online referrals in November 2020 which were confirmed in an email to SIPTU on 27 January 2021, which was submitted.

Legal Argument:

The Complainant cites  Cementation Skanska (Formerly Kvaerner Cementation) Limited and Tom Carroll DW DWT0338, in its application based on reasonable grounds to allow an extension under section 8(2)(b) of the Act. The Complainant  submits that the Labour Court found  in that case  that the test is an objective one and the circumstances must explain why the delay occurred and the causal link that bring the circumstances and the delay together. The Complainant submits that the delay was due to the fact that the both the representative, and the Complainant, believed that the complaints were submitted on time in December, three months after the dismissal.

The Complainant contends  that but for the electronic failure in the system, the complaints  would have been submitted on time. The representative submits that in December 2020 Covid-19 cases were at an all-time high, where workers were operating from home and the country was heading into a complete lockdown. Cases before the WRC and the Labour Court were delayed, the number of referrals were escalating, and the WRC were doing as much as they could do at the time. The Complainant further cited decision  R-159543-UD-15 where the Adjudicator found through his own enquiries “that there had been a number of similar issues had been notified and have arisen in the past”.

 The Complainant cites Alert One Security Ltd v Khan DWT1572  and claims that it has similarities with the instant case where the complainant in that case  firmly believed that the case was properly before the WRC, four weeks after his dismissal. The Complainant submits that given the extraordinary times  during the pandemic the adjudicator should similarly follow ADJ-00033548 where the Adjudicator found that: “based on exceptional circumstances that pertained during the Pandemic…I determine that the complainant has demonstrated reasonable cause for the delay in bringing the Unfair Dismissal Case.”

Substantive Issues:

CA-000450-001: Unfair Dismissal.

Summary of the Complainant’s evidence:

The Complainant gave evidence under oath. He worked for twenty years with the Respondent with no disciplinary issues up to the events leading to his dismissal. He received awards for his performance in the past. He covered for a colleague when she was out sick from June to December 2019. He was given an extra  sizeable portion of the Munster area to cover during this time. He stated that  when he was called to a meeting about scanning issues, he had no concerns because he believed his performance was up to standard. He did not believe his job was in jeopardy. He was taken aback when he discovered that he was to attend a disciplinary meeting. There was no benefit to himself in the allegations that were made. He completely denied falsifying records and believed he was being punished for being a witness in support of  a  colleague who had made a bullying complaint.

On mitigation of loss, he stated  that he had applied for nine different positions and eventually found work with a new employer on 7 June 2021 at a loss of €489.00 per month. He estimated his loss during a period of unemployment to be €29,000 and that his accumulated losses, when his bonus was factored in, comes to €63,755.  

He accepted, in cross-examination, that he was aware of the COBC regulations regarding proper record keeping especially the requirement that it has to be accurate. On mitigation of loss, he had stated that Covid-19 had depressed the jobs market but accepted that retail and the food areas, where he had expertise, were doing well.

Legal Argument:

The Complainant submits that he was subjected to a flawed investigatory and disciplinary process, and that the decision to dismiss was disproportionate in the extreme.

The Complainant submits that the circumstances in this case do not amount to the stated “substantial grounds justifying the dismissal” as per section 6 of the Act. The band of ‘reasonable responses’ test in the context of Section 6 of the Act, was set out in Bank of Ireland v Reilly [2015] IEHC 241,  by Noonan J.

In cases where misconduct is stated as the basis for dismissal, the Complainant argues that the test is set out by Lord Denning in British Leyland UK Ltd v Swift (1981) IRLR91, , confirmed in this jurisdiction in Foley v Post Office(2000) ICR1283. The Complainant asserts that scanning anomalies over a few days in the context of a twenty-year work life, could not be considered a sackable offence and meet the threshold of a reasonable employer response.

The Complainant cites a recent case of A Social Care Worker v A Care Services Provider ADJ-00025193, September 2020, the respondent made no reference to the consideration of alternatives to dismissal as per the disciplinary policy and therefore, the complainant was successful with the complaint.  

The Complaint relies on Rogan Martin v Coca-Cola HBC Ireland Ltd ADJ-00022037, 2 May 2021 where the Complainant argues that this case, against the present Respondent, has similarities with this instant case where the complainant was successful on the following similarities: a flawed process, no alternatives to dismissal considered, no weight  given to the previous years’ service and no consideration of  cooperation with the entire process.

Preliminary Issue: Complaints out of time:

CA-00045024-001: Unfair Dismissal:

The Respondent rightly pointed out that claims under the Act must be submitted within 6 months beginning on the day of the dismissal unless there was a reasonable cause to extend such a time period by 6 months. The Complainant is seeking to have the time limit extended by the rationale as adopted by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) Limited and Tom Carroll DW DWT0338, which both parties opened.

The Complainant’s representative gave evidence, accompanied by documentation, that she believed she had submitted the claim electronically  on 10 December 2020. She exhibited a copy of the claim where the box marked ‘Submitted’ appeared. I made reasonable enquiry with the Workplace Relations Commission (WRC) who assured me that there was no record of receiving such a claim. I have also been informed by  the WRC  that had such a form been issued electronically then a receipt email should be sent to the sender. The Complainant’s representative stated she had received no such email of acknowledgement. However, the Representative gave plausible evidence of previous issues that were experienced with regard to electronic submissions. In Cementation Skanska   the Labour Court stated that  “The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.” On the basis of the documentary and verbal  evidence of the Complainant I conclude that, given the exceptional circumstances of Covid pandemic at the relevant time, the argument was not irrational nor absurd.  I decide that the Complainant  has forwarded reasonable cause and therefore I find that the complaint is properly before me as per section 8(2)(b) of the Act.

CA-00045040-002: Minimum Notice.

The Complainant’s Representative gave no evidence, either verbal or documentary, that this claim had been submitted under similar circumstances as the foregoing Unfair Dismissal claim. Therefore, I find that this claim was submitted in the first instance on 5 July 2021 and no reasonable cause was proffered to justify an extension of time. I deem the complaint to be out of time.

Substantive Issue.

CA-00045024-001: Unfair Dismissal.

Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts provides:

“(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

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.”

S.I. No. 146 of 2000 – Industrial Relations Act 1990 (Code of Practice on, provides that:

“The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.”

In determining whether a dismissal of the Complainant was unfair, the Respondent must show that the procedures adopted by the Respondent, that resulted in the decision to dismiss, were fair and that the conduct was that of a reasonable employer. Furthermore, I must also examine whether the Respondent has discharged the burden that the decision to dismiss the Complainant fell within the range of reasonable responses that a reasonable employer could adopt.

The Complainant argued that the process was flawed but outside of assertions, no meaningful evidence of a breach of S.I. 146 of 2000 was given. The Complainant argued that he was not aware of the purpose of the investigative meeting that led to the disciplinary action yet in an email sent by management to him on 09 July 2020  it clearly stated that:  “The main points on the agenda will be related to the CDE scanning process. We received a report regarding alleged fictitious scanning activities which took place during last quarter of 2019”. I note also that he was offered and availed of trade union representation during both the investigative, disciplinary and appeal  stages. The Respondent also submitted cogent evidence that all pertinent documentation and appendices were supplied for the disciplinary meeting, as were the minutes which were subsequently confirmed as accurate by the Complainant. Having heard the evidence and submissions from on the procedures adopted by the Respondent, I am satisfied that they stood the test of reasonableness as demanded by section 6(7) of the Act.

The band of reasonable responses test was considered by the Irish High Court in Bank of Ireland v Reilly [2015] IEHC 241, which was opened by both parties.  In that case Noonan J. highlighted that s.6(7) of the Unfair Dismissals Act 1977 provides that a court may have regard to the reasonableness of the employer's conduct in relation to a dismissal, and stated:

“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”.

In relation to s.6 of the Unfair Dismissals Act 1977, Noonan J. highlighted the onus that is on the employer to establish that there were substantial grounds justifying a dismissal, and that the dismissal resulted wholly or mainly from a matter specified in s.6(4) of the 1977 Act, which includes the conduct of the employee.

The Complaint relied on Rogan Martin v Coca-Cola HBC Ireland Ltd ADJ-00022037, 2 May 2021 where the Complainant argued that the case had similarities to the instant case. Whereas I conclude there are some similarities between the cases, I find that Rogan Martin can be distinguished on some fundamental points: (1) the adjudicator found that there was at the time an ambiguity and some tolerance towards the method of scanning, (2) He found that there were serious flaws in the disciplinary process and (3) he was satisfied that there was not a serious breach of trust. Based on the evidence in this case, specifically the extensive list of anomalies which were not adequately explained to any reasonable degree by the Complainant, I find that there was a serious breach of trust. I am mindful that the there was a strict code of proper auditing that the Complainant was fully aware of and, fundamentally, he was acquainted with the fact that any deviation from the regulatory auditing practice could have serious consequences for him. However, I am  satisfied that the Respondent acted unreasonably by not considering the significant mitigating factors in this case. Firstly, the Respondent had an unblemished disciplinary record up to then, secondly, his performance in the workplace was exemplary, including a formal recognition by the Respondent and ,thirdly, the fact that there was no tangible financial  gain for the Complainant in the conduct at issue.  I conclude that, under the specific circumstances of this case, the Respondent’s decision to dismiss the Complainant did not fall within the range of reasonable responses that a reasonable employer could adopt. The Respondent could have plausibly chosen a lesser sanction, such as suspension, but decided otherwise.  I therefore find that the Complainant was unfairly dismissed.

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

[(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

I find that reinstatement and reengagement are not redress options to be considered in this case due to the fact that I find that there was a breach of trust to the extent that the employment relationship at this stage could not be sustained and moreover, the Complainant has commenced employment with a new employer.

I requested further proof of meaningful mitigation of loss from the Complainant because I was not satisfied that he had submitted the necessary documentation of actual job applications at the hearing,  outside of  a list of assertions of purported applications. I received further solicited   documentation after the hearing, albeit a  more detailed copied list from the ‘jobs.ie’ site. There were  no actual copies of letterheads of replies from companies that could convincingly persuade me that the Complainant’s applications were in earnest. The Respondent submitted its concerns in a response to the post hearing submission. The Complainant eventually found work on 7 June 2021, approximately nine months after the dismissal. Whilst on the face of it, it may seem like a relatively long period to be without work for a person with developed marketing skills, I have considered that this was during the Covid-19 pandemic where serious obstacles impediments existed for prospective job applicants.

The Complainant submitted figures to show estimated financial  loss over two years to be €63,755. A loss of bonus of €20,000 was factored into this sum which was plausibly  contested by the Respondent who argued that it should have been nearer €10,000 based on the variable nature of the bonus. I must now consider the contribution of the Complainant to the dismissal.  He had been fully aware that auditing regulations were to be strictly complied with and the Respondent gave convincing evidence of the need to have a  proper record of assets. The Complainant’s explanation for  deviation from proper practice which resulted in erroneous times for assets recording,  were not credible, both during the disciplinary procedure, and at the hearing itself. I therefore find that the Complainant contributed  substantially to his own  dismissal to a degree of no less than 80%.  Having regard to all the circumstances in this claim, I find it is just and equitable to conclude  that the compensatory sum should be €10,000.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00045024-001: Unfair Dismissal.

For the reasons outlined above, I find that the Complainant was unfairly dismissed and I award him the compensatory sum of €10,000.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00045040-002: Minimum Notice.

I find that the complaint was out of time and therefore not well founded.

Unfair Dismissals Act 1977, Gross Misconduct, Minimum Notice.