Complainant

Respondent

Parties

Paul Sheridan

S & A Construction LTD

Representatives

Stephen O’Sullivan B.L., Frank Murphy Mcintyre O'Brien Solicitors

Fiona Egan Peninsula Group Limited

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-00049448-001

30/03/2022

This complaint is for unfair dismissal for gross misconduct. The Complainant asserts that the decision to dismiss him was unfair. The Respondent asserts that the decision was fair and that insofar as there were any procedural errors (which are denied) these did not impair the decision to dismiss.

The Complainant gave evidence under Oath at the Adjudication Hearing as follows:

Background

The Complainant started working for the Respondent on 18 May 2020.

He had previously worked as a sub-contractor (from 2012 until May 2020) with Sean McKiernan, the managing director of the Respondent. During this period, he had got to know Mr. McKiernan very well and had great respect for him. They worked closely together. He found Mr. McKiernan to be reasonable, generous and straight in his dealings.

The Complainant’s job title was foreman/site supervisor. He was a senior employee in the company.

Company Vehicle

When he was still working as a sub-contractor for the Respondent in 2018, the Complainant was provided with a Company vehicle (Renault Traffic Van) and an accompanying diesel fuel credit card, (a DCI card.)

When he was provided with a company vehicle, he discussed with Mr. McKiernan that he might keep his own VW car, for personal use and use the Renault van for work. Mr. McKiernan suggested instead that he sell the VW and “keep thefew pound for himself.”  Mr. McKiernan told the Complainant he could use the Renault van “for whatever he needed to do himself.” Thereafter the Complainant sold the VW car and used the Renault van both for work and limited personal use, as was permitted by the employee handbook (although the Complainant admitted to not being aware of the clause in the handbook at the time, rather he acted on what Mr. McKiernan had said to him directly.)

The Complainant’s commute to work was considerable. Each day, he travelled from his home in Ballyshannon, Co. Donegal to Ballinagh, Co. Cavan or construction sites around Cavan. His round trip to work was circa 120km per day and he was glad when the Respondent provided him with a van.

Mr. McKiernan also allowed him to leave work early at 4.30pm each day because of the long commute, so that he could get home to see his wife and young children.  

His limited personal use of the van was for example dropping or collecting his children from their sports activities in the evenings. However,  these domestic trips were all proximate to his home place and for any family events or trips they always used his wife’s larger car, a VW Passat.

From 2018 onwards the Complainant’s only vehicle was the Renault van and the Respondent knew this. The Renault was mainly used for work but it was also for this limited personal use. After it was given to him, no-one from the Respondent ever discussed with him, his use of the van.

DCI Fuel Card

Fuel for the van was filled using a DCI (Diesel Card Ireland) card. A DCI card is like a credit card where the cost is charged directly to the Respondent. When he was provided with the DCI card no one from the Respondent ever discussed with him how the card operated. He was one of about 4 or 5 Respondent employees who used a fuel card but there no discussions took place around the use of the card. He simply used it as he would have used a credit card.

As when he drove his VW, he was discerning about where he bought the fuel from and did so  on the basis of price. As he travelled from Ballyshannon to Cavan each day and back, when he needed fuel, his practice was to buy a small amount of fuel in whatever station was nearby but not fill the tank. Then he would travel on and wait to get a larger fill where the diesel was cheaper. This was a something that he had always done and continued to do it after he was provided with the Renault Van and was given the DCI card. Even though it wasn’t his money, he was not wasteful.

Use of Company Van

The Respondent business closed for Christmas from 17.12.2021 until 4.1. 2021. During that period the Complainant was off work and he and his wife mainly used his wife’s VW Passat to get around however he accepts that he also used his Renault van during this period but, bar one trip to Cavan on Christmas Eve -  to collect tools which had been left in a house where the Complainant had done work for a priest -  his trips over the Christmas break were limited to a 10 mile radius of his home in Ballyshannon.

He filled the van with fuel twice over the Christmas break, once in Blacklion, Co. Cavan on the day he returned home from work (on 17.12.2021 where he purchased €81.76 worth of diesel) and, once in the Abbey Garage, Ballyshannon near his home (on 28.12.2021 where he purchased €151.82 worth of diesel) which was necessary because of his trip to Cavan on Christmas eve. This last fill was done in preparation for his return to work on 4.1.2022.

On his return to work on 4 January 2022 everything seemed normal and he got on with his work.

10 February 2022

On 10 February 2022, a Thursday, he and Mr. McKiernan had a work meeting in Slieve Russell Hotel in Cavan when Mr. McKiernan asked him if he would like to confess to anything. This question came completely out of the blue.

The Complainant was surprised and asked him what he meant. Mr. McKiernan had a piece of paper in his hand and the Complainant saw that it had “Blacklion, Abbey Garage” written on it. The Complainant asked him what he meant and then he said – “do you think that I’m using DCI card for personal use, because I’m not.” Mr. McKiernan then told him that he had until 9am the following morning to come clean and that was then end of the discussion.

The Complainant went home and discussed this conversation with his wife. He decided to ring Mr. McKiernan that night. He asked him what was he supposed to have done. Mr. McKiernan said “you have until 9am tomorrow morning or else this will go further and they’ll get onto you.” The Complainant did not understand who “they” were. He got worried, not knowing if Mr. McKiernan meant HR or An Garda Siochana.

In the absence of knowing, he decided not to go into the work the next day, which was Friday 11 February.

On 14 February 2022 the Complainant received a letter from Graphite, HR Consultant inviting him to attend an investigation meeting on, 16 February 2022. The invitation letter attached i) Terms of Reference governing the investigation; (ii) Company Disciplinary Procedure; (iii) Rules for Use of Company Vehicle Policy and (iv) Evidence that the Respondent had provided to the investigator including a print-out of DCI fuel purchases.

The investigation was in respect of 3 allegations. These were:

1(a) Use of fuel card on multiple times on the same or sequential dates

1(b) Use of fuel card to fill a non-company vehicle on 11 January/12 January 2022.

1(c) Use of Company Car for Personal Use.

On 15 February 2022 the Complainant sent to Graphite a summary of his position in respect of the allegations and Graphite responded to same.

On 16 February 2022 Graphite held an investigation meeting by way of a remote meeting. The Complainants defence to the allegation were as follows:

-          1(a) Doing small fills and larger fills at different garages on the same dates was a practice that he had,  to get larger fills at a garage where the fuel was cheaper. It was to save money for the company.

-          1(b) On 11 January he was driving home late in the Renault van. It was 9pm, he had not yet been at home to see his children so he put a small diesel fill into van, to get home quickly. The next morning on the way to work he did a larger fill, again to the Renault van.

-          1(c) He was never told that he couldn’t use the company van for limited personal use.

The Complainant understands that Mr. McKiernan was interviewed by Graphite on 17 January 2022. The Complainant did not receive Mr. McKiernan’s statement during the disciplinary process and therefore never was made aware of the evidence against him.

On 24 January 2022 Graphite issued their Investigation Report.

Graphite Investigation Findings

The investigation dismissed allegations 1(a) on the basis that the investigator was satisfied that there was corroborative evidence to support the Complainant’s explanation of shopping around to get different fuels fills on the same date to get fuel at a cheaper rate. The garage that the Complainant attended to get the larger fills was cheaper than the one that was local to him.

In respect of allegation 1 (b) there was no evidence to counter the Complainant’s explanation that on 11 January he was anxious to get home and only did a half fill of the van fuel tank so this explanation was accepted by the Investigator.

In respect of allegation 1 (c) the allegation was upheld because the Investigator found that Complainant admitted was in breach of these rules. If he was not aware of the company rules in this regard, he should have been.

At the Adjudication hearing he was cross examined that his defence to the charge 1(a) was erroneous because when using the DCI card, the price of fuel was the same, regardless of where it was purchased. He said that he did not know that and had never been told that. The Complainant said that clearly the Investigator was not told this either because she upheld his defence in respect of this charge.

28 February 2022

On the evening of 28 February 2022 members of An Garda Siochana attended the Complainant’s house investigating an alleged offence of misuse of a DCI card on 11 January 2022. The Complainant was confused at this. The Garda member then showed the Complainant photographic evidence of him attending a garage on 11 January at 9pm using the DCI card to buy fuel in which he could be seen putting diesel into his wife’s car, ie the VW Passat. As soon as the Complainant saw the photographs, he realised that he had made a mistake and he accepted that he must have done what the photographs showed. He said that it was an honest mistake and he accepted that he must have automatically used the card by accident on that one occasion to the value of €60.31.

Given the attendance of the Gardai at his house and the photographs, the Complainant became concerned that he might be prosecuted. The attending gardai advised him about the option to sign an Adult Caution.

The Gardai had told him that it was unusual for an Adult Caution to issue for such a small amount of money because usually these things are usually sorted out by the money being repaid. But given the evidence against him, the Complainant could not deny what he had done although he did not accept that he intended to defraud Mr. McKiernan or that he was guilty of an offence and he told the gardai this.

He never intended defrauding Mr.McKiernan. He would not do that on anyone. He explained that it was an honest mistake and that he must have not been thinking and just paid for the fuel with the card automatically.

The Complainant agreed with the attending gardai that he would sign an Adult Caution with respect of the offence. It was explained to him that if he accepted the offence, it was unlikely to go to Court. He was advised that this should be the end of the matter but that it was up to the Superintendent who needed to sanction that matter was appropriate to be dealt with by way of Adult Caution. The Complainant said he would sign an Adult Caution. He did not want the matter to go to Court.

At the Adjudication hearing when the Complainant was cross-examined about 11 January and the explanation he had given to the Graphite Investigator about getting home late (and not wanting to delay so he could see his children before bedtime.) He was told that he finished work that day at 4.30pm. The Complainant said that he told the Investigator that he had been coming home late, not that he had left work late. He said that on 11 January night he parked the Renault van at his parents in law house, where his wife was. He then took her car, to collect his son from basketball, and filled her VW Passat with diesel. He did not mean to use the DCI card but must have done because the photographs showed that he did. He maintained that this was an honest mistake. The explanation about being late was still true.

The explanation that he gave to the seemed the most likely explanation for what the fuel print out showed. He was not given enough time to think in detail about what happened, only getting a day between the evidence being given to him and the investigation hearing taking place. When he was asked by Graphite to give an explanation for the night of 11 January (allegation1 b), he also had to explain 28 other dates (allegation 1a) in which there were double fuel fills, all of which were explained by his intention to get cheaper fuel. The short time that he had to prepare for the Graphite Investigation led him to give an explanation that made the most logical sense. He didn’t really fully remember the night of 11 January 2022, even though it was not that long ago.

3 March 2022 – Disciplinary Meeting

On 2 March 2022 Mr. McKiernan sent the Complainant a letter inviting him to a disciplinary meeting the following day at 430pm. He attached the Graphite report which had exonerated him in respect of allegations 1(a) and 1(b) but had upheld 1 (c.) When he attended this meeting the next day, he understood that the only finding against him was with respect to the lesser charge, ie using the Company vehicle for person use. When he went to the meeting, in no way did he expect to be treated as he was.

At the disciplinary meeting Mr. McKiernan was not clear about what he wanted. He threatened the Complainant that he had a file of evidence against him and asked him at the meeting to admit the wrong-doing. He spoke of a “case pending” and being in Ballyshannon Court. The Complainant had thought that agreeing to the Adult Caution had put an end to any prosecution. The Complainant said that he had to accept that it had happened, because he had seen the photographs but he did not accept that he had done it deliberately. This seemed to annoy Mr. McKiernan who then asked him to leave and to come back before 5.30pm if he wanted to change his answers. Mr. McKiernan told the Complainant to “stop telling lies.” This whole thing had become overblown. Using the fuel car on 11 January had clearly been a mistake and it hadn’t happened any other time.  

The Complainant did not go back to see Mr. McKiernan before 5.30pm because he was not going to change his position. He had not meant to use the card. It was not an intentional mis-use of the card. He regretted the whole thing so much, but it was a mistake. He had not meant to do it.

Following the meeting on 2 March Mr. McKiernan sent the Complainant a summary of what had happened at the meeting. The Complainant disagreed with the summary and sent Mr. McKiernan his version of what had happened.

In his correcting minute the Complainant states:

-          “Paul told Sean about the Gardai calling and Sean replied that he knew they had been to see him. Paul said the Gardai mentioned a caution as it was a one off and under €80 and that he was waiting on the superintendent to come back to him. Sean replied that he had been talking to the Superintendent in Ballyshannon..”

Dismissal

The Complainant received a letter of dismissal dated 9 March 2022. The basis of the dismissal was a finding of misconduct on two fronts: Use of the company vehicle for personal use and misuse of the DCI card.

The Complainant was dismissed summarily and was not given any notice. On this point the Complainant also seeks that the loss includes a week’s pay under the Minimum Notice Acts.

The Complainant (in addition to the cross-examination questions already recorded above) was cross examined as follows:

He accepted that he was incorrect about the DCI card being the same rate regardless of where fuel is purchased however he only learned this during the WRC hearing. That had never been explained to him. None of the other employees who drove company vehicles had told him this. Mr. McKiernan didn’t tell him.  Nor clearly was it explained to the Graphite Investigator, who had upheld his explanation on that allegation.

He accepted that what he told the Graphite Investigator about the night of 11 January 2022 was incorrect. He explained that he said this because it seemed the most likely explanation for what had happened. He felt pressure to provide an answer but only was given a day to explain 28 or 30 different payments (re allegation 1a) His evidence (re allegation 1b)  about wanting to be quick to see his children was an explanation he gave because he knew that he got home late that night and that he had to collect his son from basketball. He said it was an honest mistake and that no evidence showed that he had done this on any other occasion.

He accepted that by agreeing to the Adult Garda Caution, he admitted the offence but he did this to ensure that no prosecution would be brought. The photographic evidence was there. He still maintained and explained to the Gardai in his house that evening that while he accepted that he must have done it, he didn’t mean to do it. It was the best way to avoid being prosecuted.

He accepted that he had received an employee handbook and agreed his signature dated 15.12.2020. (in which the car policy permitting limited personal use) is set out.

He admitted that on 10 February 2022 when Mr. McKiernan asked him if he wanted to say anything, the reason that the Complainant unilaterally volunteered the question (“is this about diesel use?”)  was because he saw that the paper in Mr. McKiernan’s hand that the names of fuel stations on it.

The reason that he did not go into work on 11 February 2022 was because he did not know what was hanging over him. In fact, during the phone call on 10 February he said to Mr. McKiernan “how can I go into work if I am meant to have done something but I don’t know what it is?” Mr. McKiernan said to him “either reply by 9am or it’ll be taken further.” But the Complainant did not know what he was talking about.  

With respect to personal use of the Company van the Complainant said that he believed that he was allowed use the van on a limited basis for personal use. This issue had never once been brought up by the Respondent. The personal trips that he used the van for during the Christmas break, as evidenced by the fuel fills were, the day he returned home from work on 17 December 2021, when he filled the van in Blacklion, Co. Cavan. And on 24 December 2021 he had to drive from home back to Cavan to get his tool kit that he’s left in the priest’s house. He needed the kit to put the children’s Christmas presents together. He accepted that this was a personal trip, but he did not think that there was any problem with this. He didn’t think that Mr. McKiernan would have a problem with it.

He accepted that the evidence that he gave to the Graphite Investigator about 11 January fuel fill was very specific. I doesn’t know why he didn’t just say “I can’t recall.”  He felt under pressure to give answers for a lot of dates. He accepted that it was only when the Garda showed him the photographs that he realised what had happened. He does not believe that this happened on other occasions, because it wasn’t a practice, it was a mistake.

He accepts that he did not then telephone Mr. McKiernan to admit his mistake.

It was put to him that it was implausible that he was unaware for 4 years using the DCI card that the price was the same regardless of the location. He said he never got receipts and was never told this.

It was put to him that there were 28/30 dates given to him but only 3 dates were given by Mr. McKiernan to An Garda Siochana to look at CCTV at these stations. Of these three date, one  showed the Complainant putting fuel in his wife’s car using the DCI card. It was put to him as implausible that this was the only time that he misused the card. He disagreed.

It was put to him that at the disciplinary meeting on 2 March 2022 that he told Mr. McKiernan that he would come back before 5.30pm, the Complainant said no, that he was told by Mr. McKiernan to only come back if he would accept that he had deliberately taken the fuel, which he did not accept.

The Complainant said that he thought Mr. McKiernan going to the Gardai in the first place was over the top. He accepted that he did not offer to pay back the money. He was worried that he might be prosecuted still because of Mr. McKiernan talking about “a case pending” and having lots of evidence against him and talking about “Ballyshannon Court.”

He accepted that Mr. McKiernan said that if he would just accept that he had done it deliberately that there was a brand new van was waiting outside for him and he’d go back to work, but he wasn’t prepared to admit something that he did not do.

He didn’t appeal the decision to dismiss him because the appeal was to be directed to Mr. McKiernan, who had just dismissed him, so he didn’t see the point in that.

He did not accept that he had contributed to the financial loss arising from the dismissal.

He was not able to look for work immediately because he felt very low but after about 2 months he started looking for work and started in a new job in November 2022 so his loss period was about 6 months.

Submissions on behalf of the Complainant

The Complainant contends that his dismissal was defective in substance and in process.

The procedural requirements that the authorities hold must be adhered to in cases of gross misconduct have not been adhered to by the Respondent. The defects in this process inevitably lead to defects in the decision that was taken to dismiss the Complainant and in circumstances such as these, the Adjudication Officer is compelled to find that an unfair dismissal took place.

The Graphite Investigator was not properly informed by the Respondent of many basic facts.  She was not given the Garda evidence, she was not told that the DCI card meant the same price in all stations. Her investigation and findings should be entirely set aside as if the investigation did not take place. And without an investigation the Complainant was never provided with the case that he was required to answer.

Specifically:

1.       Given that she was not informed properly about how the DCI card was used, her investigation findings re allegation 1 (a) are unreliable

2.       Given that she was not provided with the information that the Respondent had received from the Gardai, her investigation findings re allegation 1 (b) are unreliable

3.       Despite noting that the employment contract admitted “limited person use” of company vehicles expressly was permitted, this allegation was upheld on the basis of the Complainant’s Christmas Eve trip. The Respondent had never circumscribed what “personal use” meant and the Complainant was never made aware that such a trip was prohibited.

The disciplinary meeting on 3 March 2022 was not a disciplinary meeting. The two more serious allegations of the three, were dismissed by the Investigator. Therefore the only basis that the Complainant could have been dismissed was because he used the Company van for person use on Christmas Eve, because this was the only criticism of the Complainant that that the Investigator upheld.

Instead the Respondent acted on new information that he had obtained from An Garda Siochana after the conclusion of the Graphite Investigation. The photographic evidence from the Gardai should have then been given to the Complainant and he should have been given an opportunity to respond. This did not happen.

At the meeting on 3 March 2022 the Complainant was just asked to stop lying but he did not even know what lie or lies he was being accused of. It was not clear to him if Mr. McKiernan thought he had wrongly taken fuel on occasions other than 11 January. It seemed that Mr. McKiernan was making this assumption but that was not proven.

The investigation should have been reopened afresh once the Garda evidence became available and the evidence should have been given to the Complainant and he should have been given an opportunity to respond.

It took the WRC hearing for the Complainant to obtain the full information that he should have been provided with before the Disciplinary meeting and been given an opportunity to respond. Being asked “do you have anything to say” is not an application of fair procedures.

The test to be applied is that the dismissal was procedurally and substantively fair. This dismissal was neither.

Respondent’s Evidence

Sean McKiernan, Managing Director of the Respondent gave evidence under Oath as follows:

The Complainant started working for him in May 2020. His hours of work or 730 until 4 pm. This early finish time was to facilitate the Complainant who needed to travel from Bally Shannon to Cavan, a 120 km round-trip each day. The Complainant was provided with a company van a Renault van to do this round trip. Prior to his employment had worked as a subcontractor with the Respondent for years. The Complainant and his brother had a block-work company and they worked a lot with the Respondent.

Mr. McKiernan had always held the Complainant in very high regard before this whole matter arose. He found them to be trustworthy and he had known him a long time. Everybody liked the Complainant He was very well regarded with everyone that he worked with. He was an asset to the company.

Mr. McKiernan could not believe it when he first considered the DCI records. Every part of him wanted to disbelieve the evidence, which seemed to point (and as was ultimately was conceded by the Complainant when he signed the Adult Caution) to the fact that he had wilfully defrauded the Respondent. Nothing was easy about this whole process for Mr. McKiernan. He felt betrayed to his core, such had been the level of trust between them. He couldn’t believe that the Complainant would’ve done this to him.

The matter first came to light when during the Christmas break Mr. McKiernan looked at the diesel accounts / DCI card records and noticed that an odd practice was used by the Complainant. The Complainant purchased fuel at different times on the same date. This practice didn’t make sense. The price of fuel, when a DCI card is used, is the same no matter which fuel station it is bought in. All the staff who drove a company vehicle knew that. For the Complainant to drive for a while, stop, put a small amount of fuel into the van, drive on and then put a much larger amount of fuel into the van later in the journey made no sense to Mr. McKiernan.

The Complainant, according to the DCI records, was the only driver out of five vans who had this practice. It required an explanation. Mr McKiernan decided to investigate the matter further. He thought of a little else during January 2022 and how best to deal with it.

Ultimately, he decided that he needed to get comprehensive proof to put his mind at ease. He decided that he would ask An Garda Siochana to retrieve the CCTV footage.  In doing, so, he did not intend to escalate the issue. His intention was to the truth of what went on. If the Complainant could be seen filling the company van then, while odd, there would not be anything wrong with that. He decided to give the Gardai only two or three specific transactions to investigate, of 28 which showed multiple fuel fills in too short succession.

On the 22 January he contacted the gardai. He gave them two or three specific dates and specific fuel stations to view CCTV footage.

On the 30 January 2022 the Gardai asked him to call in to them.  On his arrival they told Mr. McKiernan that on one of the 3 dates the CCTV showed that the Complainant had filled a non- Company car with fuel using the company DCI card. That was on 11 January 2022.  From the footage, it was clear, that the purchaser was the Complainant. He used the company DCI card for the purchase but the vehicle was a VW Passat, not the company van used by the Complainant.

Following this information, Mr McKiernan was devastated. He couldn’t believe it. He had many sleepless nights following this discovery. The Complainant was married and had a young family. He knew that he had to act but he also knew that it could wreak havoc on the Complainant’s life. He did nothing immediately and in early February 2022 he decided that he would ask the Complainant directly. He thought that if the Complainant admitted it when asked then maybe Mr. McKiernan could find a way around it. He needed the Complainant to work but he also wanted to believe that there was an explanation for what had happened.

10 February 2022

On the 10 February 2022 the Complainant and Mr. McKiernan were on a site in the Slieve Russell hotel in Cavan and he asked the Complainant to come into the canteen. There he asked him if there was anything that the Complainant wished to talk to him about.

The Complainant immediately replied “do you think I’m abusing the diesel fuel card?”

Mr. McKiernan had not mentioned anything about the diesel fuel card, and this defensive reaction by the Complainant made Mr. McKiernan suspicious.

He told the Complainant that he wasn’t accusing him of anything. He told him that he would be in contact with him. That evening at 7pm the Complainant and his wife rang him at home and the Complainant told him that he wasn’t going back to work. The Complainant’s wife asked him what’s coming next an email or a letter. He told her that the Complainant was to come back into work the next day as he would know then how the matter would be dealt with.

The Complainant didn’t come to work the following day, Friday 11 February and Mr McKiernan rang Peninsula, the employment legal advice organisation. They advised that an investigation would need to take place and that the Complainant would need to be given an opportunity to explain things from his side. Mr. McKiernan explained to Peninsula that he could hardly believe what the Gardai had told him and that, somehow it must be all a mistake that he had worked alongside this man for 10 years. Anything he had asked for anything Mr. McKiernan would have given it to him. On foot of their advice Mr McKiernan decided the best way of dealing with it was to arrange for an independent investigation to take place. He engaged with Graphite, an Investigation organisation that is linked to Peninsula and drafted Terms of Reference which he sent to Graphite.

The allegations against the Complainant which were to be investigated by Graphite were:

1(A). Use of fuel card on multiple dates

1B. Use of fuel card for non-company car and

1C. Personal use of a company car.

The Graphite investigation process commenced. Mr McKiernan left the Investigation entirely up to Graphite as to how the process was to run. Graphite interviewed the Complainant and then interviewed Mr. McKiernan. Mr. McKiernan did not interfere with this process other than be treated as a witness.

Once the Graphite investigation report was received, Mr McKiernan realised that there were fundamental errors that had been made by the Investigator. Matters that he had assumed she knew, she did not know.  For example the investigator was not aware how the DCI fuel card worked (same price, regardless of garage,) also the investigator did not have the photographic evidence that the Gardai had, which he had told Peninsula about when he discussed the issue with them.

Had the Investigator had this vital information she would have known that the explanations that were provided by the Complainant in respect of Allegation 1(A) and 1 (B) were inaccurate.

In terms of Allegation 1(C) - the personal use of the company car - The company handbook is clear the use of company vehicle for private use is limited. Mr. McKiernan gave evidence to the Investigator that he did significant (120km) trips over the Christmas period which were not work trips. At the Adjudication hearing he also admitted that occasionally he brought his children sometimes in the car. Mr. McKiernan’s evidence to the Adjudication was that if he had known he had uninsured passengers in his car, he would’ve taken the car off the Complainant. There are no seats for children in the van and the company was not insured for passengers. Insurance is high enough without adding this type of personal use to the premium.

But when Mr. McKiernan received the Graphite report, he was disappointed because he saw not only all the inadequacies in the Investigation but also the lies told by the Complainant to the Investigator, which compounded the situation.

To Mr. McKiernan it was simply not credible that the Complainant did not know that the DCI card meant that fuel was the same price regardless of where you bought it. The Complainant’s explanation - that he was shopping around for cheaper fuel – held no weight in light of this widely known industry fact.

Further the Complainant’s explanation for the 11 January was clearly a lie. He told the Investigator that the reason why he did a quick fill in the van that evening close to home and did a larger fill in the same garage the following morning was he was anxious to get home to see his kids because it was late. Mr. McKiernan did not believe this. The Complainant never worked late. He worked until 4.30pm every day, getting home at 9pm was not because he had been working late. Also, in light of the CCTV that was held by the Gardai, his explanation about only doing a small fill so that he could get home more quickly was entirely incorrect given that he filled his wife’s car and not the Renault van, which meant that he would’ve gone home to get his wife’s car to drive that back to the fuel station to fill it with fuel.  The whole story about the Complainant being anxious to get home to see his children was clearly lies.

The Investigation report was distressing for Mr. McKiernan to read, but it showed him at least that the Complainant was not the character that he believed him to be.

Mr. McKiernan was made aware from An Garda Siochana that on 28 February 2022, the Complainant had agreed to an Adult Caution in respect of the fuel purchase on 11 January 2022.  

He had previously told the Gardai that he wasn’t interested in prosecuting the Complainant, but they told him that the matter was now in their hands and they had prima face evidence that a crime had been committed which they were under an obligation to deal with. He hadn’t realised in going to them in the first place to get the evidence that he would set a ball in motion that he no longer have control of.

However the Garda evidence was clear. On 11 of January 2022, the Complainant filled his wife’s car using the company DCI fuel card and when he had been asked about that by the investigator he lied.

As far as Mr. McKiernan was concerned the photographic evidence against the Complainant was conclusive anyway but by agreeing to sign the  Adult Caution the Complainant admitted that the fraud was not a mistake.

By agreeing to the adult caution, the Complainant admitted the criminal offence of purchasing fuel using the Respondent’s DCI card for a vehicle that did not belong to the Respondent. Admitting the offence was an admission of intent.

Following this Mr. McKiernan moved quickly to hold to a disciplinary meeting. This took place on the 3rd of March 2020.

Disciplinary Meeting

At the start of the Disciplinary Meeting Mr. McKiernan decided that even at that stage, if the Complainant admitted to his face that he had taken the fuel, as he had already admitted the offence to the Gardai, he would keep the Complainant working for him.

He needed the Complainant, he liked him and he wanted to put the matter behind them. He asked the Complainant why he had told the Investigator the story about 11 January when he knew it to be untrue. Mr. McKiernan couldn’t trust him if the Complainant wouldn’t admit it to his face. He told the Complainant that there was a brand-new car sitting outside ready for him if he simply would admit what he had done. He liked the Complainant. He was deeply disappointed about what had happened, but he was still willing to keep working for him because he needed him. He just wanted to bring the matter to an end.

He noticed that the Complainant had become very agitated so he suggested that he think about what he wanted to do and come back. He told the Complainant that he’d be in the office until 530pm that evening. Mr. McKiernan‘s intention was that if they had a good hard honest, and frank conversation, a line in the sand could be drawn and he would be able to get the Complainant back to work. He hoped that that this conversation would clear the matter up.

In his mind, by signing the Garda caution this was enough to prove the fraud. However, he was still looking for a solution.

But in response to this the Complainant still maintained that it had been a mistake and that he did not intend to do it.

Having told the Complainant to come back at 5:30pm, the Complainant never came back. Following this Mr. McKiernan didn’t see how a solution was possible.

This was the second time that the Complainant had walked away. The first was when the matter was on the 10 February when he didn’t come into work the following day, the second was on 3 March.

An opportunity was available on 3 March meeting for the Complainant to simply admit what he did, and be frank, but if he wasn’t prepared to admit what he had already admitted to the Gardai, then no employment relationship could continue.

When the Complainant did not come back before 530pm, Mr. McKiernan drafted a letter to dismiss him. He did not take this lightly. Apart from the sadness that he felt, it didn’t suit him not to have the Complainant working for him. He had been a great worker and he had lots of work that he needed the Complainant to help them with. But when the Complainant didn’t return, he took it that the Complainant did not want to come back.

When Mr. McKiernan put all the evidence together, the abuse of the fuel card, agreeing to sign the garda caution for an offence of theft, the personal use of the van, the way complainant had had an opportunity to remedy things, but chose not, Mr. McKiernan felt had no other choice, but to dismiss the Complainant. He issued the dismissal letter on the 9th of March 2022, and thereafter he received no further contact until the WRC complaint was made. No appeal was brought, even though same was offered in the dismissal letter.

As part of the WRC adjudication, the Complainant made serious allegations about Mr. McKiernan, that he had said negative things about him to prospective employers which undermined the Complainant’s reputation. Mr. McKiernan denied ever saying any such thing. When any person ever asked why the Complainant had left his job Mr. McKiernan always said that he had got work closer to his home. That was it.

Sean McKiernan was cross-examined as follows:

-          The DCI card was never explained to the Complainant, to which Mr. McKiernan said he couldn’t recall but that the Complainant had been using it for 4 years and everyone knew how it worked.

-          There was no issue about using the Renault van for personal use, Mr. McKiernan told him that he would have no need for his VW and should sell it. To this Mr. McKiernan doesn’t recall that.

-          The personal use of the van over the Christmas period was within the definition of personal use, which Mr. McKiernan denied.

-          When he spoke to the Complainant on 10 February, he was vague and unclear, he didn’t say what the problem was. He just asked the Complainant had he anything to confess. To which Mr. McKiernan said I had the Garda evidence then, I knew what he had done, I just couldn’t believe he was denying it.

-          Well if you had the evidence why did you not give it to Graphite? To this, Mr. McKiernan said he didn’t think he had to.

-          The Graphite investigation was defective in every respect. The only finding that was made against the Complainant was the personal use of the company van. To this Mr. McKiernan said, that he also had the Garda evidence and later the admission to the caution.

-          That evidence was never put to the Complainant to accept or deny. That was deliberately withheld from the Graphite Investigator, why? To this,  Mr. McKiernan said he believed that he needed to keep independent from the Investigation process. But after the investigation report was released, it was clear that it was a defective process.

-          So you accept that there was no proper investigation. To this,  Mr. McKiernan accepted was the case. However when he dismissed on 3 March Mr. McKiernan knew that the Complainant had agreed to sign the Adult Caution. Mr. McKiernan dismissed him when he said he would come back to the meeting and did not. He dismissed him for two reasons; misuse of the DCI card and personal use of a company vehicle.

-          When asked why he decided not to put the evidence to the Complainant in a properly and adequately informed, new Investigation. To this Mr. McKiernan said that he wanted the Complainant to get back to work. If he had just come clean, there would have been no dismissal.

-          When it was put to him that when he went to the Gardai in January 2022, he wanted him out of the job from that point on. To this, Mr. McKiernan disagreed. He said that he knew by the end of January 2022 that the Gardai had sufficient evidence to prosecute the Complainant but he wanted to allow the Complainant to have a right to explain himself.

-          But he was not afforded that right, because the investigator was only given half the evidence. To this Mr. McKiernan said that he didn’t know that the investigator didn’t know everything. His first phone call to Peninsula was prompted by what the Gardai told him and the CCTV evidence that they found. He told Peninsula about the CCTV. The Complainant told lies to the investigator about 11 January, that became clear when the CCTV was shown to him.  Mr. McKiernan said he was sorry about going to the Gardai, although admits that had he not done so, he never would have got to the truth of the matter.

-          The Complainant was pressurised at the meeting of 3 March. He was asked to admit that 11 January was not a mistake and that the offence was intentional but because of Mr. McKiernan’s references to Ballyshannon Court and the file of evidence, he thought if he admitted anything he would be prosecuted. To this, Mr. McKiernan disagreed.

-          Mr. McKiernan was not clear about what he wanted the Complainant to do – neither during the meeting of 10 February or at the 3 March meeting. It was a vague “Confess or else” type proposition. The Complainant did not know what to do. To this, Mr. McKiernan disagreed strongly. He said, on the contrary (and this was accepted by the Complainant) he offered the Complainant a new car to start back if he would just admit to his face what he had admitted already to the Gardai. A line in the sand needed to be drawn.

-          The appeal offer was an appeal to Mr. McKiernan. It was not an offer of any independent appeal.  To which Mr. McKiernan said that if he had appealed, it would have been heard by someone else.

No application was made for this Adjudication to be heard or published other than in public.

Errors in the Investigation

There were a number of glaring, procedural errors in the investigation process conducted by the Respondent in this case. The Respondent accepts this.

The investigator was not provided with essential information that she needed to conduct the investigation. The Respondent relied on the Investigation as a way of testing the Complainant; getting explanations from him which the Respondent then contrasted with evidence that he already knew was held by the Gardai. When Mr. McKiernan first spoke to the Complainant about the issue on 10 February 2022, he already knew from the Gardai that evidence for a criminal prosecution against the Complainant was in their possession, and yet none of this was provided by the Respondent to the Complainant or the Investigator. The Respondent’s approach to the investigation was erroneous and the decision to dismiss would be fundamentally flawed if the Complainant had not independently agreed with the Gardai to accept an Adult Caution.

The Adult Caution

It is not clear exactly why the Complainant agreed to sign the adult caution when it was suggested to him on the night of 28 February 2022, but he did and he does not deny that he did.

What is an Adult Caution?

An adult caution is available as an alternative to prosecution where there is evidence that a person has committed a criminal offence but where a prosecution of such an offence is not in the public interest. By accepting a caution, a suspect admits that he or she is guilty of the offence.

The specific offence that the Complainant agreed to accept by way of signed caution on 28 February, and later did sign on 25 March 2022 was an offence under section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

The caution records that “Paul Sheridan admitted under caution of using S&A Constructions DCI Fuel card to fuel his wife’s private vehicle on 11.1.22 at 21.16 hours at the Abbey Garage, Ballyshannon. CCTV footage obtained also proves this.”

The Complainant’s evidence to the Adjudication was that on 28 February he was told by the Gardai that “if I accepted the Adult caution, it wouldn’t go to Court. I was admitting it” on foot of which he said that he would accept a caution.

There was nothing in his evidence at the Adjudication hearing to suggest that he was not aware of what he was agreeing to or that the Gardai did not explain what it meant or that he was unaware that an admission of the offence includes an admission of both action and intent.

Test of Misconduct in an Unfair Dismissal Case

In order for the Respondent to justify the decision to dismiss the Complainant the Respondent is required to prove facts which allow him to reasonably find that an act or acts of gross misconduct occurred.

Even if the findings of the Graphite Investigator are entirely discounted, and for reasons already set out, I find that this must occur, I am satisfied that when Mr. McKiernan learned that the Complainant had admitted the offence to the Gardai on 28 February 2022 that Mr. McKiernan was then entitled to treat this as being an admission (on a criminal standard of proof) that the Complainant knowingly put fuel in his wife’s car and paid for it using the Respondent’s fuel card.

I do not accept the Complainant’s contention that because the caution document was not signed until 25 March 2022, ie three weeks after the dismissal, that his admission on 28 February should not have been relied on by the Respondent. On 28 February the Complainant told the Gardai that he would accept a caution under the 2021 Criminal Justice (Theft and Fraud Offences) Act.  Mr. McKiernan was then informed by the Gardai that the Complainant had taken this course of action.  

This was not denied by the Complainant. At the meeting on 3 March, he says that he and the Respondent discussed the fact that the gardai had called to his house and that he had been advised about accepting an caution.

The Complainant’s own email to the Respondent (to correct the Respondent’s minutes of the disciplinary meeting on 3 March) evidences this, in which he wrote:

“Paul told Sean about the Gardai calling and Sean replied that he knew they had been to see him. Paul said the Gardai mentioned a caution as it was a once off and under €80 and that he was waiting on the Superintendent to come back to him. Sean replied that he had been talking to the Superintendent in Ballyshannon.”

From this the above comment, it is clear that prior to the disciplinary meeting on 3 March, Mr. McKiernan had been told by the Gardai that they had attended the Complainant’s house, had shown him the CCTV photographs and that he had accepted a caution. 

In such circumstances the only question that remains is whether it was reasonable for the Employer, (in light of his admission to the Gardai) to find that the Complainant intended to take the fuel?  I find that it is. The acceptance of a caution is an admission of an offence of theft on a criminal standard of proof. It is difficult to see how an Adjudicator could reach any other finding when the test to be applied under the Unfair Dismissals Act is a lesser standard of proof, ie whether the Complainant, on the balance of probabilities, took the fuel intentionally.

An admission of guilt, in these circumstances, is equivalent to where an employee is dismissed following a prosecution in which a Court has found the employee to be guilty of an offence, that constitutes gross misconduct in his contract of employment.

If the Complainant had not signed the Adult Caution, there would have been no admission of wrong-doing and the evidence would have to have been put properly to the Complainant, he would have been entitled to an opportunity to be heard and without which, the dismissal would have been substantively defective, because the procedures leading to it were fundamentally flawed.  

But fair procedures do not exist in an ether of their own. Fair procedures (or rather the lack thereof) need to be causatively connected to a dismissal for that dismissal to impaired. If proof of wrong-doing is found to exist independently, particularly where the proof arises from an admission of wrong doing made to the Gardai, that proof may be relied on by the Employer and the requirement for fair procedures is surpassed.  

In this case, which is rare, the Complainant admitted the offence of theft (both action and intent) to the gardai, theft was an act of gross misconduct under his contract and his admission was reported to his employer.  

Once Mr. McKiernan knew this, the need for any further investigation by him, in my view, fell away. The requirement to investigate the matter further was replaced by an admission of the offence on a criminal standard and Mr. McKiernan was entitled to rely on that admission.

And while it might have been prudent to do so, I do not accept that the Respondent was obliged to wait to dismiss the Complainant until the caution was formally issued and signed, some weeks later.

I am not satisfied that the finding of misconduct as it related to the improper use of a company vehicle has been proven by the Respondent. The company policy permitted limited personal use of the company vehicle and both parties accept that the Respondent never explained what constituted limited use. In any event the use of a company vehicle for personal use, is not, of itself, a serious enough breach to constitute misconduct to justify a dismissal.

I am satisfied that the Respondent has proven facts from which it was reasonable for him to decide, that the Complainant stole from him on 11 January 2022 and admitted this theft to the Gardai and that this was an act of gross misconduct which justified the Respondent’s decision to dismiss him.

For the reasons stated I find that the Complainant was not unfairly dismissed.

I find that the Complainant was not unfairly dismissed.

Dismissal – Procedures – Evidence obtained by Gardai relied on by Respondent