Complainant

Respondent

Parties

Denis  Walsh

Avoca Handweavers Limited

Representatives

Conor Kirwan

Aleksandra Tiilikainen IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00056324-001

26/04/2023

The Complainant made a single claim:

A claim for unfair dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended).  

Dismissal was not in dispute. The Respondent operates in the food and catering sector. The Complainant was employed by the Respondent as a cleaner from the 2nd of June 2019  until he was dismissed on the 2nd of December 2023.

The Complainant was represented by Mr. Conor Kirwan. A detailed written submission was delivered on behalf of the Complainant. The Complainant gave evidence on affirmation.

The written submission made the following arguments:

The Complainant was dismissed from his role with Avoca (herein referred to as the Company) on 2nd December 2022. The processes undertaken by his employer were unfair, heavy-handed, and erroneous in terms of Mr. Walsh’s right to ‘Natural Justice’

The Complainant was brought to an investigatory meeting on 23rd September 2022. The issue was investigated, and the Complainant was at all times compliant with the investigation and fully cooperative, open and honest. The Company did not suspend Mr. Walsh at the time, which would imply that The Company was not unduly concerned about the prospect of potential financial and material losses by continuing to allow Mr. Walsh to work on a daily basis for a period of near 3 months whilst the investigation and subsequent disciplinary proceedings took place.

Additionally, whilst there is no legal definition of how long a workplace investigation and disciplinary process should take, employers are bound by ‘reasonableness’ in this regard. Mr. Walsh is firm in his assertion, that the time taken by The Company to deal with the matters concerned went beyond the bounds of reasonableness and were a cause of considerable stress to him whilst he continued to diligently perform his duties as scheduled by The Company.

Furthermore, the disciplinary process was inherently flawed. Mr. Walsh was not afforded his Natural Justice rights. He was not advised by the disciplinary officer of his right to have a trade union representative as a companion/representative at the hearing. Given the sensitivity of the issue, Mr. Walsh did not have any comfort in bringing a colleague to the hearing and was left in a position where he had to attend alone. The Company failed in its duties in this regard.

Mr. Walsh maintains further to the above that he was honest and cooperative at all times, despite the Company’s flawed processes and heavy-handed actions. Mr. Walsh accepted that he did remove waste items from the premises which was in-line with a custom and practice in place at the organisation and engaged with by numerous employees at that time and prior to it.

Mr. Walsh was subsequently dismissed by The Company on 2nd December 2022.

Mr. Walsh is a person of good character. During his employment with The Company for a 6 year period, Mr. Walsh performed his duties with diligence and furthermore was never previously subject to any disciplinary proceedings. The Company’s unfair dismissal has tarnished the character of Mr. Walsh and impacted his earnings. Mr. Walsh took significant efforts to re-enter the workforce after his unfair dismissal and through his efforts to provide for his wife and young family took on a lower-paid position with another organisation to as best maintain their standard of living as he could.

The Court of Appeal judgment in Iarnrod Eireann / Irish Rail v. McKelvey  [2018] IECA 346 (“McKelvey”) deals with question of the right of employees to have external representation in internal disciplinary procedures.

Employees have the right to Natural Justice in disciplinary proceedings. The Company failed in its duty to afford Mr. Walsh his Natural Justice rights in this regard, and in effect he was denied the right to trade union representation at the disciplinary stage in relation to this issue. The Company’s failure in this regard instituted an unfair and unbalanced process which significantly disadvantaged Mr. Walsh and his rights to defend himself against heave-handed actions undertaken by The Company.

In addition, ‘The Burns Principle’ is indicative that in situations like that of Mr. Walsh which are complex and have the possibility to tarnish a person’s good character, the individual subject to company’s processes should be informed of and granted the opportunity for representation by appropriately qualified persons at disciplinary hearings. The Company, a large and well-resourced organisation did not employ this principle and accordingly, denied Mr. Walsh his Natural Justice rights.

Custom and Practice is an ‘implied term’, operative outside of a contract of employment. Written contracts cannot be exhaustive, and long-term practices which consistently operate in organisations are deemed Custom and Practice and implied terms in a contract of employment.

Mr. Walsh at no point denied that he removed items of small value from the Company’s premises. Mr. Walsh was following a Custom and Practice where employees had taken products which were unsaleable waste items from the Company premises to consume themselves. The items concerned therefore had no monetary value and the Company was not at a financial loss through the actions undertaken by Mr. Walsh.

To Mr. Walsh’s knowledge, no other employee was ever pursued for similar actions by the Company at the time this situation occurred. Mr. Walsh can demonstrate that this was a practice widely undertaken. The Company’s ownership transferred at a point prior to this situation, and the Custom and Practices employed, which are implied contractual terms were not adhered to by The Company. Mr. Walsh’s actions therefore cannot be considered to be in breach of the Company’s policies surrounding theft.

The Transfer of Undertakings (Protection of Employment) Regulations protect the rights of employees if their employer sells the business. TUPE ensures that the new employer cannot change the employees’ employment rights as a result of the transfer. In Irish employment law, we have relied on the UK Court of Appeal’s (CoA) decision in Albion Automotive Ltd v Walker [2002] EWCA Civ 946 to give guidance with such matters.

Furthermore, it cannot be deemed reasonable to suggest that items of no monetary value removed from a Company premises can be considered theft.

Paid suspension from employment is a very serious step and can and should only be employed in certain circumstances. Employers should not engage in ‘knee-jerk’ reactions which can potentially tarnish the reputation of an employee and/or imply guilt or wrong-doing on the part of the employee.

Nevertheless, where there are potential safeguarding issues, or more relevant to this case, where an employer is concerned by the potential for further material or financial losses to their organisation, then it is best practice and responsible on the part of the organisation to suspend the employee under investigation on full pay throughout the course of the investigation.

Through its failure to suspend Mr. Walsh, the Company did not demonstrate in any meaningful way that they were concerned by the actions alleged to have been undertaken by Mr. Walsh and were in contravention of their own practices.

I refer to the circumstances regarding theft stated in the case of Employee -v- Employer (UD 1048/2009) that “it was noted by the Tribunal that while the respondent stated that they considered this, a very serious matter, the claimant was allowed to work for them on the Saturday prior to the meeting on the Monday.” This failure, to suspend the employee directly contributed to an award of €17000 for unfair dismissal.

In cases of gross misconduct, organisations do not have to pay employees any notice period.

In this case, Mr. Walsh was paid a period of notice by the Company. This implies that the Company did not consider the actions of Mr. Walsh to be that of gross misconduct. Therefore, it is at the very least confusing as to why the Company paid a period of notice to Mr. Walsh, despite their held assertion that Mr. Walsh’s actions constituted gross misconduct.

Conclusion

In light of the overwhelming body of evidence provided by Mr. Walsh, his dismissal from his role with the Company is wholly unfair and tarnished his good character.

It is a testament to Mr. Walsh’s diligence and commitment to his family that he found employment again, albeit on a lower wage. Mr. Walsh has informed the WRC of his loss of earnings and seeks full redress from the Company.

The Respondent was represented by IBEC. The Respondent provided a detailed written submission and called two witnesses, who gave evidence on affirmation.

The written submission made the following arguments:

The Complainant commenced employment with the Respondent on 3rd June 2019 as Cleaner in Avoca’s Central Bakery & Kitchen unit in Bray, Co. Wicklow. His employment was terminated on 2nd December 2022. The Complainant worked 40 hours per week and earned €460.00 per week On the 4th June 2019 the Complainant signed an Anti- Theft Policy. On 11th May 2022 the Complainant signed again the Anti-Theft Policy, the Staff Search Policy, the Staff Meal Policy and the Clocking Inand Out Procedure.

On the 16 September 2022 a report was made to the Technical Manager that on 10th September around 9 am the Complainant was seen in the Bakery Assembly Room decorating a box of cupcakes. There was another staff member there, a Cake Decorator. She stated that she approached the Complainant, and he stated that he was decorating the cupcakes for a named person. She further stated that she could not find the Complainant up until 12 pm. The Cake Decorator confirmed that the Complainant was at the bakery and he said something to her, but she did not understand it and that he in fact took and decorated 6 cupcakes.

On Monday 19th September 2022, CCTV footage was received by HR.

On the 21st of September the Complainant received an invitation to an investigation hearing. The Complainant was informed that he was entitled to bring a colleague with him and that at the meeting he would have an opportunity to review CCTV footage. The Complainant was forewarned that the meeting could result in a further disciplinary meeting that could lead to a disciplinary warning up to including dismissal. The Complainant was assured that no decision would be made without considering all the facts.

During the investigation meeting held by Ms Sarah Kennedy, the Complainant explained that every Saturday sweet products are brought upstairs to be thrown to the bins and as he had not seen his nieces since before the pandemic, he took a box of cupcakes to give to them. The Complainant stated he did not think there would be an issue as the cupcakes would be binned anyway. The Complainant explained that he said to the Cake Decorator that he was taking cupcakes as there was no management on site at the time. Later on, he found out that the Cake Decorator did not understand what he said to her. After watching the CCTV the Complainant stated that you can see on CCTV that he was not trying to hide the cupcakes as he thought it was fine to take them. The Complainant was issued with the investigation meeting minutes.

On the 3rd of October the Complainant was issued with the Investigation Outcome Report which recommended referral to the disciplinary procedure. The Complainant was given a right to appeal the outcome of the investigation which he did not utilise it.

The Complainant then was invited to the disciplinary hearing. He was forewarned that the disciplinary outcome could lead to his dismissal. He was offered to bring a colleague with him. The meeting took place on 22nd November 2022 and was held by Emma O’Sullivan, General Manager. The Complainant stated that there was nothing else he wanted to add as he explained everything at the first meeting.

The Complainant was issued with a dismissal letter on 2nd December 2022. The Complainant was informed that his behaviour constituted gross misconduct: theft. The Complainant was paid one week in lieu of notice. The Complainant was given the right to appeal the outcome of his disciplinary, but he never utilised it.

The Complainant lodged the WRC claim on 26 April 2023.

In accordance with the Unfair Dismissals Act 1977 - 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee. Following a thorough disciplinary process with the Complainant, which was carried out in accordance with natural justice and fair procedures, the Complainant was adjudged to have breached the Respondent’s policies arising out of the Complainants removal of food from the premises without prior authorisation: theft. This decision was a difficult decision for the Respondent to make and one not done so lightly as the Respondent had to consider all of the circumstances surrounding the situation and the Complainant’s own responses to the situation. As a reasonable employer, the Respondent was left with no alternative but to remove the Complainant from his employment. The site was suffering from a high rate of "shrinkage" in its stock levels. The Management addressed it with staff members by discussing it during the meetings, re-issuing the policies and asking staff members to re-sign them, the CCTV system was upgraded, and new signage displayed in the area to ensure all staff are fully aware that removal of food or stock is not allowed and could lead to disciplinary action up to dismissal. There could not be any clearer messaging to staff members that the removal of food or stock from the CBK was not allowed.

In relation to the sanction imposed by the Respondent, the principles to be applied in cases of

gross misconduct have been clearly established over time, and the test as set out in Looney &

Co. Ltd v Looney, UD 843/1984, is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the Claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

It is clear that a “reasonable employer in the same position and circumstances” would have done and decided as the Respondent did. At the core of any organization is the need for satisfactory standards of behaviour and conduct. If the Respondent had not disciplined the Complainant appropriately, it would have given the impression to other employees that such conduct was not viewed by the company as incorrect, when in fact the Respondent has made it very clear in its contract of employment and disciplinary procedure that this conduct was not acceptable. The Respondent’s Disciplinary Procedure is very clear under Gross misconduct heading states: Theft.

Further, the Complainant signed his contract of employment on 3rd June 2019 and within this contract it is clearly outlined under the heading Termination Without Notice, that Theft is considered Gross Misconduct.

On the 4th June 2019 the Complainant signed the Anti-Theft Policy which clearly states that Avoca operates Zero tolerance policy in relation to theft.

In gauging if a dismissal falls within a ‘band of reasonableness’, the Adjudicator has to have regard to the procedures used in arriving at a decision. Guidance is provided to employers in S.I. 146/2000, which is a Code of Practice for disciplinary and grievance processes. The Adjudicator must also have regard to the statement by Flood J in Frizelle v New Ross Credit Union Ltd (1997)IEHC137 that ‘The actual decision, as to whether a dismissal should follow, should be a decisionproportionate to the gravity of the complaint, and of the gravity and effect of dismissal on theemployee’.

In determining if the decision to dismiss falls within a band of reasonableness, the Adjudicator must have regard to Lord Denning’s question as to whether a reasonable employer would decide to dismiss on the facts? It is not for the Adjudicator to decide if it would dismiss, nor does it matter that another employer might decide not to do so. What matters is if the Respondent was acting as a reasonable employer in reaching that decision. In the view of the Respondent, given the circumstances, it cannot be said that their decision was irrational or unreasonable. The essential elements of S.I. 146/2000 are that allegations must be investigated; a worker under investigation must be afforded the right to be heard; the worker has a right to be represented at all stages; if the investigation finds that there is a case to answer, there must be a separate disciplinary hearing and there must be a right of appeal of any sanction. All of these requirements were met by the Respondent in the instant case. To be fair to the Respondent, serious consideration was given to the imposition of a lesser penalty, which turned out not to be a feasible proposition. This shows that regard was had to the impact of dismissal on the Complainant, notwithstanding the conclusion that the Respondent could no longer have confidence in the Complainant carrying out an unsupervised role. As the Respondent had reached a reasonable decision to dismiss, it follows that Adjudicator must accept that the penalty is proportionate.

In the case of Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008 (Appendix), the Tribunal sets out quite clearly the requisite remit of the Tribunal and the burden which must be demonstrated by the Respondent in the matter at hand today:

“The Tribunal is not required to determine whether the claimant did or did not carry out the alleged

act […]. The Tribunal’s function is to establish whether the respondent has proven that the

dismissal was not unfair, having regard to the terms of the Unfair Dismissals Acts 1997 [sic] to

2001. For this to be established the Tribunal must be satisfied that the alleged act […] was fully

and fairly investigated by the respondent, that the investigation and disciplinary process respects

the rights of the claimant, that the conclusion that the offending act had been perpetrated by the

claimant was reasonable on the balance of probabilities and that the dismissal was a

proportionate response within the band of sanctions which could be imposed by a reasonable

employer.”

Each of these criteria outlined by the Tribunal will be examined in turn.

(A) Fair procedures

Firstly, the matters were “fully and fairly investigated” and at all times in the process, the Complainant’s rights were upheld. Drawing on SI 146/2000, the rights which are in question here today have all clearly been upheld:

• The Complainant was fully aware of the allegations against him and was always aware that the matters being considered under the disciplinary procedure.

• The Complainant was provided with an opportunity to respond fully to all allegations against him. There was thorough investigation process into the incident, the Complainant was provided with a full and fair opportunity to present his case and to influence the decision.

• The Complainant was at all times advised of his right to representation at each stage of the process, but he did not avail of it.

• The Complainant was afforded a fair and impartial determination of the issues. All relevant information and evidence pertaining to the matter were taken into consideration and the Respondent considered the situation thoroughly before reaching a conclusion. Furthermore, the parties who were involved in the decision-making process were impartial and not previously involved with the process.

• The Complainant was advised of his right to appeal at the Investigation Report stage and at the disciplinary outcome stage. The Complainant did not utilise the appeal process.

(B) Concluding based on the “balance of probabilities”

It was “reasonable on the balance of probabilities” for the Respondent to conclude that the Complainant had carried out an act of a misconduct. The Complainant admitted to the misconduct, but he never acknowledged it was considered a theft.

(C ) A “proportionate response”

• It is the Respondent’s responsibility to its employees that they employ trustworthy staff, who follow procedures and who would not carry out acts of misconduct such as theft of company property. This incident has irrevocably broken down the relationship between the Respondent and the employee.

• Finally, the dismissal was “a proportionate response within the band of sanctions which could be imposed by a reasonable employer.” The Respondent contends that this sanction was proportionate in light of the severity of the matter. The Respondent is baffled how the Complainant can claim he never realised his job was at risk where 4 our of 5 documents he signed with the Respondent clearly outline that theft may lead to the dismissal. The Complainant was further notified that the outcome of the disciplinary hearing could lead to his dismissal taking into consideration the allegation in front of him. Somehow the Complainant thinks that the fact that he did not conceal the product does not render the behaviour theft, and continued to call it “bringing them home” .

Taking account of the nature of the Respondent’s business and the trust that must exist between

employer and employee in such an environment, and in those circumstances, it was reasonable for the Respondent to treat the admitted removal of goods as being very serious. As such the

Respondent’s decision to dismiss was reasonable and fair in the circumstances, and no unfair

dismissal took place.

The actions of the Complainant destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. In Berber v Dunnes Stores Ltd [2009] ELR 61 the Supreme Court considered the types of conduct that may be considered to undermine the relationship of trust and confidence,

Finnegan J holding:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to therelationship between employer and employee a breach of the implied obligation may arise.”

This position has been upheld by the Employment Appeals Tribunal on a number of occasions,

including in Knox Hotel and Resort Ltd, UD 27/2004, where the Tribunal stated that:

“[The Claimant’s actions] destroyed the respondent’s trust and confidence in the Claimant and

rendered the continuation of the employment relationship impossible, thereby justifying her

summary dismissal”

It is a well-established principal that the contract of employment between an employer and an employee contains several terms made up of both expressed and implied terms. These terms form the basis of the contractual arrangement and need to be observed in order for the contract to exist. Several of these implied terms that are required to be observed by an employee include the duty of fidelity and honesty. This duty places an obligation on an employee to give mutual trust and confidence. The Respondent would argue in the strongest terms that the action of the Complainant was unacceptable behaviour.

As set out above, therefore, the Respondent submits in the strongest terms that the dismissal of the Complainant was fair on the grounds of the conduct of the Complainant.

The Respondent contends that the actions of the Complainant contributed fully to his dismissal. Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978, and O’Keeffe v Mid-Kerry Coop Livestock UD1304 whereby both Tribunals determined that both claimants had contributed 100% to their dismissal and any financial loss that they had incurred and decided not to award any redress to the complainant in light of his inappropriate actions.

The Complainant also seems to disclose only at the WRC stage that other staff members also

misconducted themselves and yet this is not something he ever brought to management attention during his investigation or disciplinary meetings.

The Respondent will submit further at the hearing on this point that if they were to take a more lenient approach to incidents in which a staff member removed goods without prior authorisation could have a knock-on financial effect on its business model therefore it was paramount staff were aware of the consequences and outcome of such actions. The Respondent does not believe a lesser sanction would have served as an adequate deterrent especially in a situation where the complainant several times confirmed in writing he understands food removal including food waste is considered to be theft and is a dismissible offence.

In the case of An Employee V A Beverage Company ADJ- 00027338 where the complainant

removed two cartons of juice from the employer premises. The adjudicator found that the decision to dismiss him was justifiable. He knew that he was not permitted to take theproduct off the production line and bring it home. He admitted that LMcG didn’t answer himwhen he said he would take it home. The conversation that he had about his girlfriend, even ifit happened on the 13 September did not provide him with a good reason to take the product.A good reason perhaps, to buy the product for her, but not a reason to take it off the productionline without authorisation. A clean record and long service does not alter this fact.

Similarly in the case in front of the adjudicator the Complainant wished to bring cupcakes for

his nieces which could be a good reason to purchase them or seek management approval but

not a reason to remove them from premises without authorisation.

COURT OF LAST RESORT: NON-EXHAUSTION OF PROCEDURES

Case law supports the principle that an employee has an obligation to exhaust the internal disciplinary process prior to seeking to enforce their rights externally. The Labour Court judgements in Dunnes Stores v A Worker LCR22639 and Melinda Pungor and MBCC Foods(Ireland) Limited support this argument. These principles are also confirmed in the following cases: McCormack v Dunnes Stores, UD1421/2008; Conway v Ulster Bank, UD474/1981; Travers v MBNA Ireland Limited,UD720/2006.

In Martin Barry v Board of Management, St Oliver Plunkett School UD93/2006, the Court dealt with an employee who did not exhaust internal procedures in a dismissal case and held that “there is little point in an employee being reticent during a disciplinary processand forthcoming before a Tribunal. If an explanation is not given to the employer, theemployee is depriving himself of an opportunity of exculpation”.

The Complainant had two chances to raise an appeal: firstly to appeal the investigation outcome and secondly to appeal the disciplinary outcome: dismissal. The Complainant failed to exhaust the internal process.

SEQUENCE OF EVETS AND EVIDENCE

The Complainant was seen removing a box of cupcakes from the Respondent’s premises on the morning of the 10th of September 2022. Reports of the incident led to an investigation process which took the form of two meetings. The Complainant received an invitation dated the 21st of September 2022 to discuss the allegations of “Theft, namely that on the 10th of September 2022 you removed a box of Avoca product, without the consent or knowledge of a member of the company’s management team, from the Central Bakery & Kitchen, contrary to company policy”. The invitation advised the Complainant that he would have an opportunity to view the cctv footage of the incident at the meeting. He was also advised that he could be accompanied by a work colleague which it was his responsibility to arrange. He was also advised that the meeting could result in his being invited to a disciplinary meeting where he could be “awarded a disciplinary warning up to and including dismissal”.

The Complainant attended the meeting on the 23rd of September 2022. Ms Sarah Kennedy, Business and Excellence Manager chaired the meeting. She gave evidence on affirmation at the hearing by reference to the minute of the meeting on file. The Complainant attended alone. He was reminded that the invitation letter stated that he could have a work colleague with him and that he had not actually brought anyone with him, but he confirmed that he was happy to proceed. The Complainant viewed the CCTV footage. The witness recalled him stating that it was clear that he was not trying to hide his actions. Ms. Kennedy stated to the Complainant that in his own words he took the cupcakes as they were going in the bin, that he later mentioned it to another employee, but he later found out that she hadn’t understood what he had said to her and then left the premises. She thought that meeting lasted about 15 minutes not the 8 minutes recorded in the minutes. Minutes of the meeting were sent to the Complainant who did not raise any corrections to them. An investigation report dated the 3rd of October 2022 was issued by Ms. Kennedy. The disciplinary policy was quoted including the right to be represented by a work colleague. Ms. Kennedy’s finding was that the Complainant did take the cupcakes from the premises without paying or notifying management and her recommendation was that the issue be progressed to disciplinary stage. The document also notified the Complainant that he had the right to appeal the findings within 7 working days.

The Complainant did not appeal the findings. He was not suspended and continued to work after the investigation outcome report. 

In cross-examination the witness accepted that the Complainant was not suspended after the investigation outcome, but she did not consider that the Complainant presented a “shrinkage risk” meaning a risk of financial loss to the company as it was her understanding that the Complainant was aware what he did was wrong and would not do it again.  As to whether she considered it appropriate to offer the Complainant trade union representation she stated that the Complainant was offered representation as per the procedures, by a colleague in Avoca or its parent company Aramark but he said that he was comfortable to go ahead on his own and he never requested trade union representation. She disputed that the product in question would have been binned.

Ms. Emma O’Sullivan gave evidence on affirmation. She is presently the General Manager of Avoca Kilmanacogue Stores having formerly held the position of General Manager of Avoca Powerscourt Stores. She is not the general manager of the branch of the business in which the Complainant was employed. Ms. O’Sullivan conducted the disciplinary hearing, and she was the decision-maker responsible for the decision to dismiss the Complainant. Ms. O’Sullivan gave evidence of the invitation to the disciplinary hearing which was issued on the 17th of November 2022. The disciplinary invitation letter set the date of the meeting for the 22nd of November 2022. The charge to be put was as framed in the investigation outcome. The Complainant was informed that “you may invite an Avoca or Aramark work colleague to attend this meeting with you. However, this is your responsibility to arrange”. He was also cautioned that disciplinary action could be taken against him up to and including dismissal and that any action taken would be in proportion to the allegation discussed. The witness gave evidence of the content of the meeting by reference to the minutes. It was a short meeting lasting about 5 minutes. The Complainant attended alone. He said very little. Ms. O’Sullivan, noting that the Complainant had had a previous meeting, asked the Complainant if there was anything else which he wished to add, and the Complainant said: “No everything has been said. I said all in the first meeting”. Ms. O’Sullivan made the decision to dismiss. She said that she felt that the theft had occurred and moreover the Complainant had given misleading information at the outset regarding whether the product was to be thrown out and whether he had asked a manager for permissions to take the product. It was clarified that the product was not, as a matter of fact to be thrown out and the Complainant did not in fact get permission from management to take the product. Ms. O’Sullivan did not make her decision there and then but closed the meeting and the decision was communicated in a letter of dismissal which was dated the 2nd of December 2022.

The letter of dismissal of the 2nd of December 2022 terminated the Complainant’s employment with immediate effect. However, he was paid a week’s pay in lieu of notice. The letter noted that the charge as framed in the investigation outcome was upheld and that the Complainant’s behaviour qualified as gross misconduct. It was also noted that during the Disciplinary Meeting the Complainant had offered no compelling mitigation to the allegations or to the findings of the investigation. The letter ended with the offer of an appeal the decision which was to be notified in writing within 5 working days to the Director of Operations Logistics and Manufacturing whose email address was provided.

In cross examination the witness was asked to explain the long delay between the date of the incident on the 10th of September and the dismissal on the 2nd of December 2022 and why the Complainant continued to work and was left ‘in limbo’ in the intervening period. The witness thought that the Complainant had been out on sick leave for a period during this time. As to why a payment was made in lieu of notice (this being a gross misconduct dismissal) the witness said that she thought that this was the correct thing to do.

Ms. O’Sullivan accepted that the Respondent’s procedures did not provide for trade union representation and that the Complainant was not advised of his right to trade union representation, but she said that the Complainant did not request trade union representation, and she understood that if he had done so that request would have been referred to H.R. She said that she was the decision maker but that she got some assistance from H.R. to draft the dismissal letter.

As to why she had not outlined to the Complainant the reasons why alternatives to dismissal were not considered she said that she felt that given the role that the Complainant was in and the potential financial risk to the business that there was no option but to dismiss. This was so even though the Complainant had been allowed to work for nearly three months – the witness said she was not involved in the decision to let him keep working – she knew that he had signed the policy, and she was sure that he was very clear about it.

The Complainant gave evidence on affirmation. With regard to the disciplinary procedures, he was not informed that he had the right to bring a trade union representative with him. He was asked by his representative if had had been given that right would he have availed of it and he said that he would. He agreed that his rights were not explained to him in terms which he could understand. The letters did not make sense to him.

He continued to work with full access between the incident and up to the point where he was dismissed. He did take sick leave for about five weeks during this time but not for the whole period. He did not think it was fair that he should have been allowed to keep working. During that time he was insecure and anxious. He did not think the process was fair because his manager had a dislike for him although he could not say if this was personal or not. He had been critical of management.

No options other than dismissal were explained to him and he was not aware of any other options being considered.

He was paid notice.

He did not appeal because when the dismissal happened it was a shock. He had heard a manager say, “take him out of the building”. He was worried about Christmas and what he would do. He said that he was only a cleaner who lived week to week. Nothing came into his head. He was in a panic and was worried about money. [In response to my questions] He said that he was stunned and dumbfounded by the dismissal. He read the letters, but he didn’t believe that he could be dismissed. He did not believe that an appeal would have made a difference. He thought the decision was made before the disciplinary hearing and there was no point in appealing. The Complainant said that he had a perfect record up to these events. He worked under four different managers and none of them had a bad word to say about him. During the investigation and disciplinary processes, he did not shift his ground. He said that he took the product straight away. He never denied it and never deviated from this.

The Complainant found alternative employment on the 18th of January 2023. He had full losses from the date of the dismissal to that date at €4,830 and thereafter there was a differential as between weekly earnings pre-dismissal and lower earnings in the new job which lasted for 33 weeks with resultant losses of €5,973. His total losses were €10,803.

In cross-examination the Complainant accepted that even if there had been a custom and practice from previous managers – who he said had given him product in the past - he had signed several policies which specifically stated that removal of product without the approval from management is considered theft. However, he never read the policies, and he felt that he wouldn’t not have a job if he didn’t sign them. He did not accept that what he did was theft as the product was going in the bin. The Complainant accepted that there was no manager on duty on the day of the incident to direct whether the product was waste, but he did ask a colleague. The Complainant then clarified that he did not have permission from a manager to take the product, but he said that he never denied that.

Regarding trade union representation the Complainant accepted that he did not ask but he pointed out that union representation was not offered. He was never a member of a trade union, but his father had been a shop steward, and it was put to him that if that was so he would have known that he could have requested trade union representation.

It was put to the Complainant that if he was relying on other staff members doing what he did, he never said this in the investigation or disciplinary meetings. The Complainant said that he didn’t need to say this because he admitted what happened.

He did not appeal the investigation outcome because he had never heard of that type of appeal before. There was no need for an investigation. He probably did read the investigation outcome, but he didn’t understand. He probably read it wrong He didn’t appeal the dismissal because he was shocked, and it was put to him that even though he said that he was shocked he also said that he believed the decision had already been made before the disciplinary hearing.

It was put to the Complainant that he had not produced any or any sufficient evidence of his efforts to mitigate his loss. The Complainant said that he could not apply for jobs in cleaning because of his record so he turned to retail. He applied for fourteen or fifteen jobs before securing his present employment.

LEGISLATIVE PROVISIONS

Section 6 subsection (1) of the Unfair Dismissals Acts 1977-2015 provides as follows:

Subject to the provisions of this section, the dismissal of an employee shallbe deemed, for the purposes of this Act, to be an unfair dismissal unless, havingregard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6 Subsection (4) where relevant to the present case provides as follows:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

…(b) the conduct of the employee…

Section 6 Subsection (6) places the onus on the employer to establish that the dismissal was fair (the so-called reversed onus of proof) as follows:

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

Section 6 Subsection (7) provides where relevant, as follows:

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 …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…

(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) of section 7 (2) of this Act.

Section 7 of the Unfair Dismissals Acts 1977-2015 provides where relevant as follows:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal…..[Redress Provisions then follow]…

 (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 Actor 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.

Paragraphs (a), (d) and (e) relate to the employer; paragraphs (b), (c) and (f) relate to the employee.

CODE OF PRACTICE ON GRIEVANCE AND DISCIPLINARY PROCEDURES

The Complainant’s representative relied on S.I. No. 117/1996 - Industrial Relations Act, 1990, Code of Practice on Disciplinary Procedures (Declaration) Order, 1996. However, this Code of Practice was repealed by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 which Order introduced an updated Code of Practice. That said, in this particular case the aspect of the previous code relied upon - regarding the right to representation and the type of representation contemplated – is substantially reproduced in the 2000 Code of Practice such that the point made by the Complainant’s representative in relation to the former Code of Practice is also valid by reference to the 2000 Code.  I will consider the issue raised by reference to the 2000 which is current rather than the 1996 code which it replaced.   

In the 2000 Code of Practice, under the heading General Principles, Paragraph 4 defines the term ‘employee representative’ in the following terms;

“For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.”

Paragraph 5 refers to “the handling of grievances, discipline and matters detrimental to the rights of individual employees” which are then referred to in the next paragraph, Paragraph 6, as “such issues”. Paragraph 6 where relevant provides:

“The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

…- That the employee concerned is given the opportunity to avail of the right to be represented during the procedure”

Also of relevance to this decision are paragraphs 1 and  12 which state as follows:

1. 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.

12. An employee may be suspended on full pay pending the outcome of an investigation into an alleged breach of discipline.

MISCONDUCT DISMISSALS – THE APPROACH TO BE ADOPTED

There are many formulations guiding decision makers in their assessment of when a dismissal for misconduct will be deemed fair. One such formulation appears in In Bunyan v United Dominions Trust[1982] ILRM 404, where the Employment Appeals Tribunal put it thusly:

“…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 or not, 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.”

[1982] ILRM 404 at p. 413

A substantially similar approach which has become known as ‘the band of reasonableness test’ puts the test as follows: 

“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 take a different view.”

British Leyland UK ltd v Swift [1981] IRLR 91, at page 93. Applied in Bank of Ireland v Reilly [2015] IEHC 241.

The Respondent cited the test as set out in Looney & Co. Ltd v Looney, UD 843/1984, is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the Claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

The Respondent also cited the statement by Flood J in Frizelle v New Ross Credit Union Ltd (1997)

IEHC137 that:

‘The actual decision, as to whether a dismissal should follow, should be a decision

proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee’.

The Respondent further cited Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008 where the Employment Appeals Tribunal stated:

“The Tribunal is not required to determine whether the claimant did or did not carry out the alleged act ... The Tribunal’s function is to establish whether the respondent has proven that the dismissal was not unfair, having regard to the terms of the Unfair Dismissals Acts 1997 [sic] to 2001. For this to be established the Tribunal must be satisfied that the alleged act … was fully and fairly investigated by the respondent, that the investigation and disciplinary process respects the rights of the claimant, that the conclusion that the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that the dismissal was a proportionate response within the band of sanctions which could be imposed by a reasonable employer.”

In An Employee v. A Beverage Company ADJ-00027338 the Complainant was dismissed for gross misconduct after taking two cartons of juice from the Respondent’s beverage production line. The following tests were applied to the facts of that case:

“Test to be applied

(i) Was the finding of fact that the Respondent reached following the disciplinary procedure (that on the balance of probabilities, the Complainant stole product) reasonable?

(ii) Insofar as there may have been flaws in the disciplinary procedure, did these fatally undermine the findings of fact that was reached?

(iii) Was the finding of fact reasonably capable of amounting to gross misconduct?

(iv) Was the sanction of dismissal appropriate in all the circumstances?”

I have found this formulation to be a useful tool in my approach to the present case and I will apply these tests as a means of presenting my findings in an orderly fashion, but it will be evident that there is a commonality/overlap as between the findings made in relation to numbers (iii) and (iv) due to the circumstances of the case. There is also a degree of overlap between those issues and the procedural issues (at number (iii) above) which will be discussed last.  Thereafter I will deal with the issues raised by the Respondent in relation to the conduct of the Complainant as a separate issue. Finally, I will provide a short summary of the overall findings made. 

(i) Whether the Primary Finding of Fact was reasonable.

The Complainant admitted that he removed the product without authorisation from management. This admission, it should be noted was made voluntarily and was not extracted from the Complainant under threat or by subterfuge. As the Complainant said in his evidence, he never denied it. Moreover, in the present case the Respondent’s procedures, somewhat unusually, afforded the Complainant to right to appeal the investigation findings. The Complainant did not exercise this right and did not contest the findings made at any stage up to and including the disciplinary hearing.  His position essentially was that he did take the product, but he maintained that he did nothing wrong by doing and the main reason for this was that according to the Complainant the product was going to be thrown out. This latter point is a separate issue and is dealt with below. In relation to the facts alleged, i.e. that the Complainant took the product without authorisation it is clear that the Complainant admitted taking the product without authorisation.

I find that the primary finding of fact was reasonable.

(iii) Whether the offence as found was capable of amounting to gross misconduct.

I apply the statement  made in the judgement of  Finnegan J in the Supreme Court decision in Berber v Dunnes Stores Ltd [2009] ELR 61, that there is an implied term in every contract of employment whereby a mutual obligation falls on both parties not to: “without reasonable and proper cause conduct themselves in a manner likelyto destroy or seriously damage the relationship of confidence and trust between them” and I also apply the following passage from the same judgement: 

“The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”

In the present case the Respondent contended that this mutual obligation of trust and confidence includes the duty of fidelity and honesty, and I accept that this is so. I also accept the Respondent’s assertion that:

“The site was suffering from a high rate of "shrinkage" in its stock levels. The Management addressed it with staff members by discussing it during the meetings, re-issuing the policies and asking staff members to re-sign them, the CCTV system was upgraded, and new signage displayed in the area to ensure all staff are fully aware that removal of food or stock is not allowed and could lead to disciplinary action up to dismissal. There could not be any clearer messaging to staff members that the removal of food or stock from the CBK was not allowed.”

In this particular case, this particular employer was concerned about “stock shrinkage” so much so that specific policies were introduced. These policies were very clear. The Anti-Theft Policy speaks of a zero-tolerance in relation to theft. The policy specifically provides that “the unauthorised removal of any company property including food is considered to be company to be theft and as per the company handbook, theft is considered to be an example of gross misconduct…Where evidence is found that an employee is guilty of the unauthorised removal of company property and therefore theft, it may lead to their summary dismissal from the company on the grounds of misconduct”.

The position of the Respondent was challenged on four specific grounds which are dealt with below.

The Product Taken Was Due for Disposal

The issue raised by the Complainant that the product which was taken was allegedly destined for the bin is entirely irrelevant given the fact that the Complainant admitted (before and during the adjudication hearing) that he had taken it without authorisation.  It was that offence, the removal of product – any product - for which he was dismissed. However, for the sake of completeness I would add the Complainant accepted that under the procedures, only a manager could determine whether product was designated for disposal (“to be binned”) and he further accepted (and also stated in his WRC Complaint form) that there was no manager on duty when the product was taken. Accordingly, the factual situation is that the status of the product was unknown when it was taken by the Complainant and it is factually incorrect for the Complainant to say that it was destined for the bin. He may have believed that this was the case and indeed it may very well have turned out to be the case if a manager had designated the product for disposal, but a manager had not done so when the product was taken. Finally on this issue, it does seem to be the case that even if the product had been designated for disposal the Respondent’s policies would most likely still have prohibited its removal without management authorisation. 

The Complainant Was Not Suspended

The Complainant’s representative contended that if the issue of unauthorised removal of product was, as the Respondent contended, of such a serious nature as to warrant dismissal for gross misconduct, the Complainant should not have been allowed back to work for nearly three months before the decision to dismiss him was eventually made.

This ground throws up two separate issues. The first is that the failure to suspend the Complainant undermines the position taken that his conduct presented a risk, in the sense that if he was considered so much of a risk to the Respondent’s property he should not have been allowed back to work until the issue had been investigated. The other issue, that being of delay is dealt with in the next section dealing with procedural issues.

The Complainant’s representative cited the E.A.T. decision in UD1048/2009. It was contended that in that case the failure to suspend the employee “directly contributed to” the award for unfair dismissal.

The full reasoning of the Tribunal was as follows:

“All the evidence given at the hearing was fully appraised by the Tribunal and it finds that the claimant would not have put the voucher into the till if it had been her intention to defraud her employer. During the hearing the respondent conceded that the claimant had a good record with them during her employment. The Tribunal determine that her explanation in the circumstances was reasonable and should have been accepted by the respondent. It was noted by the Tribunal that while the respondent stated that they considered this, a very serious matter, the claimant was allowed to work for them on the Saturday prior to the meeting on the Monday. The claimant was also not supplied with all the facts available to the respondent prior to the meeting.”

As can be seen there were a number of issues which influenced the decision in that case at the heart of which were: the fact that the employee’s explanation in the circumstances was reasonable and should have been accepted and, that there were procedural flaws in that the employee was not provided with the facts available prior to the disciplinary hearing. Whilst it is arguable that the failure to suspend ‘contributed’ to the finding I do not accept that the decision binds me in relation to the present case, the facts of which are significantly different.

In the present case the Complainant had a lengthy period of sick leave between the conclusion of the investigation and the disciplinary process and thus when he was out sick the issue of suspension did not arise and when he did return the disciplinary process was commenced within few days. The more important time seems to me to have been the time between the initial incident on the 10th of September 2022 and when it came to the attention of management which appears to have been a few days later. When it was reported up the chain of command a formal investigation was undertaken but until that process had generated a finding of fact it could not be said that the Respondent had any more than a suspicion of wrongdoing and that suspicion could have been but did not have to be acted upon by suspending the Complainant. When the Respondent did have a finding of fact it could then have suspended the Complainant but that would probably have been unnecessary as he was on sick leave. 

There is authority for the proposition that an employer should exercise great caution when suspending an employee on suspicion of dishonesty. In the case of Bank of Ireland v. James Reilly [2015] IEHC 241, Noonan J. had the following to say:

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 I.R. 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.

…Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer.

In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process…

The corollary presumably therefore is that an employee ought not be suspended where suspension is not necessary to facilitate these matters”

The foregoing statement indicates that a holding (as distinct from a punitive) suspension ought not be undertaken lightly an employee ought not be suspended where suspension is not necessary.

Applying this to the facts of the present case, the first point is that a suspension prior to the investigation would have been quite improper. As regards a holding suspension after the investigation, the evidence of the Respondent was that it was satisfied that the Complainant was on notice of the issue which had arisen from September 2022 and he was deemed very unlikely to repeat the behaviour. In such circumstances it is clear that the Respondent, after the investigation,  did not deem it necessary to suspend the Complainant. The Code of Practice at paragraph 12 states that “An employee may be suspended on full pay pending the outcome of an investigation into an alleged breach of discipline”, which clearly contemplates the employer having the option to suspend rather than any obligation to do so. 

Accordingly in relation to this ground I find as follows:

1. The Respondent ought not to have and probably could not have suspended until the investigation outcome was available.
2. When the Respondent received the investigation outcome it should only have implemented a holding suspension if the same were deemed necessary in the circumstances of the case.
3. The Respondent took the view that no suspension was necessary, and I find that this view was reasonable and justified.
4. In the circumstances the Respondent cannot be criticised for failing to suspend the Complainant and it had no obligation to do so.
5. From the dicta quoted from O’Reilly above, it is arguable that an employer is very rarely if ever obliged to implement a holding suspension. 

I reject this ground of argument as advanced on behalf of the Complainant.

Custom and Practice

The Respondent contended that the Complainant never raised the issue of other staff taking product at any stage during the investigation and disciplinary procedures and only made reference to the issue subsequently in submissions to the present adjudication process. Insofar as the Complainant, during the investigation and in his submissions advanced the proposition that there was a custom and practice whereby product was routinely taken by staff, the closest the Complainant came to stating this in his evidence was when he said that managers had given him product to take home in the past. Even if that did occur, a manager giving an employee product to bring home is quite different from taking it without a manager’s approval. Furthermore, even if any custom and practice did exist in the past it could not have survived the introduction of the express Anti-theft Policy which the Complainant signed on two separate occasions. Moreover, theft was expressly referred to in the contract of employment as gross misconduct. The Complainant also signed this contract. 

In the absence of any credible evidence supporting this argument, I reject it.

The Payment in Lieu Of Notice

On the Complainant’s behalf it was submitted as follows:

“In cases of gross misconduct, organisations do not have to pay employees any notice period. In this case, Mr. Walsh was paid a period of notice by the Company. This implies that the Company did not consider the actions of Mr. Walsh to be that of gross misconduct. Therefore, it is at the very least confusing as to why the Company paid a period of notice to Mr. Walsh, despite their held assertion that Mr. Walsh’s actions constituted gross misconduct.”

At the hearing, the Complainant’s representative put the issue to Ms. O’Sullivan in cross examination. She stated that she directed payment in in lieu of notice as she thought it was the correct thing to do. In his evidence the Complainant said that he was paid notice, but he made no further reference to the payment. He said that he was shocked by the dismissal and also believed that the decision was made before the disciplinary hearing, but he did not say that the payment of notice, which he accepted, gave him cause to doubt that the Respondent had dismissed him for gross misconduct. The Respondent’s evidence and documentation is entirely consistent with the finding of gross misconduct. It is well settled law that an employer is entitled to dismiss summarily, i.e. without notice or pay in lieu thereof, where an employee is guilty of gross misconduct, but this does not mean that the employer is obliged to do so. The Respondent chose to pay the Complainant in lieu of notice as it was deemed the ‘correct’ thing to do. My interpretation of that decision is that the Respondent was choosing to pay the Complainant more than he was entitled to as a gesture. In all of the circumstances, for the reasons set out above, I find that the payment in the circumstances does not undermine the finding of gross misconduct as the basis of the dismissal.

A business has the right to decide for itself if a particular type of conduct is to be deemed gross misconduct and this is what the Respondent did and for the reasons offered. None of this was challenged by or on behalf of the Complainant.

The Complainant admitted that he signed the policies, but he contended that he did not read them and just signed them because he felt that he wouldn’t have a job if he didn’t. My interpretation of this is that the Respondent was demanding that the policies be signed and that this was not negotiable. Thus, the Complainant probably felt compelled to sign the policies or his employment would not continue. He may have been correct, and a stand-off may have arisen if he had refused to sign the policies but this is hypothetical since he did sign the policies and he did so without protest or qualification and he is thus bound by the policies. As the Complainant signed the documents, he is, like anyone else who signs a document in the workplace, deemed to have read and understood its content. He never questioned the policy. He did not allege that he had any literacy or linguistic issues. Even if he did not read the document thoroughly, he must have read the heading which is clearly marked “Anti-Theft Policy” in bold large-font title case at it top. Lastly, I note that there are two copies of the signed policy amongst the papers furnished to me with two different dates both of which precede the 10th of September 2022, and this is consistent with the Respondents case that the policies were issued and then re-issued and the employees (including the Complainant) were asked to sign them a second time.

The particular offence was specifically prohibited in the Ant-Theft Policy. The contract of employment specifically listed theft –as an instance of gross misconduct. The Complainant signed the contract and signed the Anti-Theft Policy on two separate occasions pre-dating the incident the subject matter of the dismissal. The contention that the product taken was due for disposal is not well-founded on the evidence. The failure to suspend and the payment of notice do not undermine the basis of the dismissal. There was no evidence to support the contention that there was in existence, at the time of the incident the subject matter of the dismissal, a custom and practice such that staff routinely took product home without authorisation from management. My overall finding on this question – which is linked to the finding in the next section – is that the offence as found was capable of amounting to gross misconduct.

(iv) Whether the Sanction of Dismissal was Appropriate in all the Circumstances

It follows from the findings made above that in the particular circumstances of this case the employer had gone to considerable lengths to highlight its zero-tolerance of removing product without authorisation or “Theft” as it was bluntly described in the Anti-Theft Policy. As regards whether a lesser penalty should have been considered, I accept the evidence offered by the decision-maker to the effect that alternatives were considered and, in the circumstances, none could be found. The Respondent’s written submission contended that “If the Respondent had not disciplined the Complainant appropriately, it would have given the impression to other employees that such conduct was not viewed by the company as incorrect when in fact the Respondent has made it very clear in its contract of employment and disciplinary procedure that this conduct was not acceptable.” Further it was contended that if the Respondent had taken a more lenient approach to incidents in which a staff member removed goods without prior authorisation could have a knock-on financial effect on its business model therefore it was paramount that staff were aware of the consequences and outcome of such actions

The Respondent further submitted that “the actions of the Complainant destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. Taking account of the nature of the Respondent’s business and the trust that must exist between employer and employee in such an environment, and in those circumstances, it was reasonable for the Respondent to treat the admitted removal of goods as being very serious.”.

In summary the Respondent sought to justify the decision to dismiss on the basis that trust could no longer be placed in the Complainant and further that the penalty of dismissal was necessary as a deterrent to prevent further breaches of the policy which this employer deemed essential to its business. I find in all of the circumstances that those reasons do justify the penalty imposed in this particular case and that this is so regardless of whether the actual offence is capable of being perceived or portrayed as trivial or non-causative of economic loss. I find that the sanction of dismissal was appropriate in the circumstances.

(ii) Insofar as there may have been flaws in the disciplinary procedure, did these fatally undermine the findings of fact that was reached?

The Delay in Concluding the Disciplinary Proceedings.

As regards the lapse of time between the incident on the   10th   of September 2022 and the dismissal on the 2nd of December 2022 it was pointed out that the Complainant had a lengthy period of sick leave in the region of five weeks’ duration which added to the delay which it was contended, was not unreasonable.

The incident of unauthorised taking of product by the Complainant occurred on Saturday the 10th of September 2022. It was reported on the 16th of October 2022. The CCTV images were retrieved on the 19th of October 2022 after which the Investigation procedure was commenced with the letter of invitation dated Wednesday the 21st of September 2022. The investigation meeting took place on Friday the 23rd of September 2022 and the outcome was issued on the 3rd of October 2022 some six working days later (or seven if Saturday was a working day). In that outcome letter the Complainant was given the right of appeal against the investigation outcome within 7 working days of that date. Assuming nothing further could have been done until that period expired, this brought the earliest date when the disciplinary could have been commenced up to the 11th of October 2022. It appears that the Complainant had a period of sick leave of some five weeks duration which would bring the date when the disciplinary process could have commenced up to on or about the 15th of November 2022. The disciplinary invitation issued two days after that, on the 17th of November 2022. The disciplinary hearing took place three working days later, on the 22nd of November 2022. The dismissal letter was issued eight days later, on the 2nd of December 2022.

In his evidence the Complainant said that he did not think it was fair that he should have been allowed to keep working. During that time, he was insecure and anxious. I have already found that the Respondent cannot be faulted for not suspending the Complainant. As for the delay bringing the disciplinary process to a conclusion, if one examines the sequence of events including the sick leave taken, the delay does not seem excessive. Whilst it is totally understandable that the Complainant would have been insecure and anxious in anticipation of the disciplinary hearing, the main cause of the delay was actually the sick leave, which was clearly beyond the Respondent’s control. In all of the circumstances I do not consider the delay excessive or unfair.

Whether Due Consideration was Given to Imposing a Lesser Penalty

The investigation and disciplinary meetings were very short but it is clear that the Complainant was given an opportunity to contribute. He made no written submissions and very limited verbal contributions. In her evidence, Ms. O’Sullivan, the decision-maker, said that during the Disciplinary Meeting the Complainant had offered no compelling mitigation to the allegations or to the findings of the investigation. Alternatives to dismissal were not considered because of the role that the Complainant was in and the potential financial risk to the business such that there was no option but to dismiss

Where dishonesty is proven or admitted – and in the present case it was the latter - sanctions of dismissal are generally not considered to be disproportionate given the breach of trust, and this is so even where the level of the offence and/or the size of the economic loss to the employer is relatively low.

I am satisfied that the Complainant was given an opportunity at the disciplinary hearing to make any representation he wished. Such representation could have included an apology and/or an undertaking not to repeat the behaviour and/or the offer to accept a sanction falling short of dismissal or a combination of the above. The Complainant made no submissions at all.

In the circumstances I am satisfied that sufficient consideration was given to the penalty imposed.

Non-compliance with the Code of Practice – Trade Union Representation Not Provided

And

Whether The Complainant Understood the Process

It was maintained on behalf of the Complainant that the Complainant should have been informed of his right to trade union representation which right is set out in the Code of Practice on Disciplinary Procedures.  

It was submitted that the Complainant was not advised by the disciplinary officer of his right to have a trade union representative as a companion/representative at the hearing. Given the sensitivity of the issue, Mr. Walsh did not have any comfort in bringing a colleague to the hearing and was left in a position where he had to attend alone.

It was contended that the language used in the letters generated during the investigation and disciplinary process was “wordy and inaccessible” to the Complainant.

As regards the right to representation the Complainant’s representative relied on the ‘Burns Principles’ which, it was submitted were “indicative that in situations like that of Mr. Walsh which are complex and have the possibility to tarnish a person’s good character, the individual subject to company’s processes should be informed of and granted the opportunity for representation by appropriately qualified persons at disciplinary hearings.”

The Complainant’s representative also relied on the McKelvey case.

The “Burns Principles” are drawn from the Supreme Court judgment of Geoghegan J. in Burns v Governor of Castlerea Prison   [2009] 3 I.R. 682; [2009] IESC 33

In that case, the applicant/respondents were prison officers employed by the respondent/appellant and had been accused of taking too long to return to Castlerea prison after escorting a prisoner to hospital.

The judgement refers to a list of factors which were cited as being of relevance to the issue of when legal representation for an internal disciplinary process might be required as follows:

“1. The seriousness of the charge and of the potential penalty;

2. Whether any points of law are likely to arise;

3. The capacity of a particular prisoner to present his own case;

4. Procedural difficulty;

5. The need for reasonable speed in making the adjudication, that being an important consideration; and

6. The need for fairness as between prisoners and as between prisoners and prison officers.”

The finding was that the circumstances of that case did not merit permitting legal representation, and it was indicated that such cases would be exceptional. Geoghegan J. held:

“I would approve of that list but it is a list merely of the kind of factors which might be relevant in the consideration of whether legal representation is desirable in the interests of a fair hearing. Ultimately, the essential point which the relevant Governor has to consider is whether from the accused's point of view legal representation is needed in the particular circumstances of the case. I would reiterate that legal representation should be the exception rather than the rule. In most cases the provisions of the rules will simply apply.”

The McKelvey judgement which was cited by the Complainant’s representative relates to a judgement of the Court of Appeal. However the case was appealed to the Supreme Court and the judgements of that Court are the relevant authorities, reported as  Barry McKelvey (appellant) v Iarnród Éireann/Irish Rail (respondent)  [2021] 32 E.L.R. 165 ; [2021] 1 I.L.R.M. 181; [2019] IESC 79 – and it is to the Supreme Court decision that I will refer.

In McKelvey, the employee was accused of irregularities in relation to the use of his fuel card so as to obtain either for himself or others, fuel which was not intended to be used for the purposes of his employment.

The appellant sought to be attended by his solicitor and counsel at any disciplinary hearings in relation to the matter. Whilst this was refused, the employer had internal procedures which permitted representation by a friend, colleague or trade union official. It was accepted that the internal procedures were in compliance with the code of practice set out in the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (S.I. No. 146 of 2000). Although the issues which were the subject matter of the disciplinary process were complex, Clarke J was of the view that they were still “straightforward questions of fact” and he could not “see anything in either the allegations, the likely evidence or the process likely to be followed which would place these disciplinary proceedings beyond the competence of an experienced trade union official.” It was held that there was no requirement in the circumstances of the case for legal representation. The finding was expressed as follows:

“For the reasons set out earlier in this judgment, and applying the approach adopted in Burns v Governor of Castlerea Prison, I am not satisfied that it has been established that this is the sort of clear case where it can now be said that a fair process cannot ensue without legal representation.”

The present case does not involve a request for legal representation (or for that matter any form of representation) and so the actual finding in McKelvey is of no direct application. However, a more basic principle can be extracted from the reasoning in McKelvey which is applicable to representation in internal procedures generally. At paragraph 44 of the judgment Clarke C.J. stated:

“When considering whether any process is fair, in the context of representation, the question is not whether a particular type of representation might give some added value but whether its absence can be said to leave the person concerned without an adequate level of representation. The level which will be considered adequate will depend on an overall assessment of all of the circumstances of the process envisaged.”

From that pronouncement it is possible to extract a generally applicable principle which might be expressed as follows:

Where an employee is facing disciplinary procedures the outcome of which may adversely affect his/her employment, fair procedures dictate that he/she is entitled to avail of such representation as is adequate in the circumstances of the particular process.

The foregoing principle clarifies that where the right to ‘adequate representation’ is requested it should not be refused, but it does not answer the question raised in this case, which is whether the right to adequate representation should be positively offered at the outset.

Code of Practice

The Complainant’s representative relied on S.I. No. 117/1996 - Industrial Relations Act, 1990, Code of Practice on Disciplinary Procedures (Declaration) Order, 1996. However, this Code of Practice was repealed by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 which Order introduced an updated Code of Practice Disciplinary Procedures. That said, in this particular case the aspect of the previous code relied upon - regarding the right to representation and the type of representation contemplated – is substantially reproduced in the 2000 Code of Practice such that the point made by the Complainant’s representative in relation to the former Code of Practice is also valid by reference to the 2000 Code.  Accordingly in the interests of accuracy I will consider the issue raised by reference to the 2000 Code which is current, rather than by reference to the 1996 code which it replaced.   

In the 2000 Code of Practice (“the Code”), Paragraph 4 defines the term ‘employee representative’ in the following terms;

“For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.”

Paragraph 5 refers to “the handling of grievances, discipline and matters detrimental to the rights of individual employees” which are then referred to in the next paragraph, Paragraph 6, as “such issues”. Paragraph 6 where relevant provides:

“The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

…- That the employee concerned is given the opportunity to avail of the right to be represented during the procedure”

The McElvey case establishes that Legal Representation when requested is not an automatic right and should be granted only in exceptional cases where it is established that a fair process cannot ensue without legal representation. From the reasoning in that case, I have abstracted a more general principle which I have formulated as follows: Where an employee is facing disciplinary procedures the outcome of which may adversely affect his/her employment, fair procedures dictate that he/she is entitled to avail of such representation as is adequate in the circumstances of the particular process. Assuming that all of this is correct it will be noted that the phrase “avail of” is used in McKelvey and as it happens the exact same words appear in the (above quoted) paragraph 6 of Code of Practice. Significantly words such as “shall be provided with” or similar words, do not appear. The clear implication is that an employee facing a disciplinary charge is entitled to “avail of” representation but he/she does not have to “be provided with” representation by the employer.

Applying all the above to the present case, I note that in his evidence the Complainant was asked by his representative whether would have availed of union representation had it been offered, and he said that he would have done so. However, he also accepted that he made no request for any form of representation whether in the form of legal representation, trade union representation or by a work colleague.

The Respondent’s invitation to the Investigation Process dated the 21st of September 2022 stated that the Complainant would be entitled to be ‘accompanied’ by a work colleague. At the investigation meeting on the 23rd of September 2024 the minutes record the following interaction:

“SK: Letter stated he could have a work colleague here. Note you don’t have one are you happy to proceed?

DW: “Yes””

In the investigation outcome report dated the 3rd of October 2022 the disciplinary policy was quoted including the right “to be represented by a work colleague”. On the 17th of November 2022 the invitation to the Disciplinary Hearing advised the Complainant that he could if he wished, invite an Avoca or Aramark work colleague “to attend” the meeting with him. This right was not repeated at the disciplinary hearing on the 22nd of November 2022. In the dismissal letter of the 2nd of December 2022, it is noted that the Complainant was “offered employee representation via your invitation letter to the disciplinary hearing and you chose not to bring representation with you”. 

As can be seen from the above, the words and phrases: “accompanied” - “have a work colleague here” and “attend” - were sometimes used; whereas the word “represented” was used in the investigation outcome. In the dismissal letter, the words “employee representation” were used.  The wording of the disciplinary policy, which was attached to the investigation invitation letter and quoted  in the investigation report stated that the Complainant had the right “to be represented by a work colleague”. I am concerned that the word “represent” and the words “accompany” (or the cognate phrase, “attend with you”) were used interchangeably by the Respondent throughout the process. The words are not necessarily interchangeable as a person who ‘accompanies’ may not necessarily be permitted to speak and may only have a role as a witness or note-taker, whereas the term ‘representation’ clearly connotes a right to speak. Looking at the wording of the Code of Practice it does seem to me that the word “representation” is the correct term, and it would have been better if this word had been used consistently throughout the process to reduce the risk of confusion. 

I would observe that the Complainant was provided with a large quantity of documentation from the commencement of the investigation up to and including the dismissal. Although it is not clear what he read, and when, he did say in his evidence that he did not fully understand what he did read. This contention at first sight, appears plausible given the volume of documents forwarded to the Complainant and the inconsistent uses of the phrases ‘accompany’ and ‘represent’. However, the Complainant never, at any stage in the investigation or disciplinary process, asked any questions about the processes whatsoever, so if he was unclear as to what was happening, this fact was never imparted to the Respondent.  Although he said that he would have availed of representation if it had been offered to him, this is somewhat hypothetical.  So too is the question of whether the outcome would have been any different if he had requested, been granted and had availed of trade union representation. I say this because of the very clear zero-tolerance stance taken by the Respondent regarding theft which would strongly indicate that it would have been very difficult for the Complainant or anyone representing him however skilled, to have saved his job in the circumstances. Both of those issues involve speculation.  The fact of the matter is that the Complainant chose to represent himself – albeit that it would appear that he did not do so particularly effectively.

A further consideration is the issue as to whether it is incumbent on an employer to advise an employee of the law or whether an employee (as with any citizen) is deemed to have knowledge of the law. In this regard it is the case that the provisions of the Code of Practice are promulgated by means of a statutory instrument and are readily available on a government sponsored website as well as the W.R.C website and many other sources. 

Conclusions on Procedural Issues

1. The Respondent’s policy which it was accepted, does not pro-actively enunciate the right to avail of trade union representation, fails fully to transpose essential provisions of the Code of Practice. The Respondent’s policy therefore was (and remains unless it has been amended), to say the very least, not reflective of what was considered best practice since 2000 (in the case of the current Code of Practice) or even since 1996 when its predecessor with similar provisions was promulgated. Moreover, the current policy as I understand it, which is to refer any requests for trade union representation for a direction from H.R., seems to me to place an unnecessary administrative obstacle in the way of a worker who may wish to avail of trade union representation.

2. The use of terminology during the procedures was loose and imprecise and not in keeping with best practice.

3. It is impossible to say whether, had it been offered, trade union representation would have affected the outcome, or to put it more simply, if the job could have been saved or any outcome other than a dismissal avoided. It will be recalled that the Respondent was committed to a “Zero-Tolerance” approach to theft. 

The foregoing misgivings and doubts would have constituted serious concerns if representation had been sought and refused and/ or if the Complainant had clearly indicated a lack of understanding or a lack of capacity to understand the investigation and disciplinary process.  However, none of those eventualities transpired. In particular I am not satisfied that the Complainant was denied the opportunity to avail of trade union representation nor am I satisfied that the Complainant misunderstood any aspect of the investigation process or if he did, he did not advise the Respondent.  With the exception of the representation issue as discussed above the Respondent’s procedures complied in full with the Code of Practice. Although I have some misgivings as expressed above, my overall assessment of the procedures is that were fair and such flaws as there were, are not sufficiently serious as to undermine that overall fairness.  

Overall Conclusion on the Dismissal

The conclusion reached by the Respondent that the Complainant was guilty of gross misconduct, the manner in which it was reached, the rationale behind the designation of the behaviour as gross misconduct and the proportionality of the Respondent’s response to the misconduct were all within the range of responses of a reasonable employer such that it could not be said that in similar circumstances no reasonable employer would have dismissed.

On the basis of the findings made above I find that there were substantial grounds justifying the dismissal and that the dismissal was not unfair.

The Relevance of the Conduct of the Complainant

The Relevance of Complainant’s Failure to Appeal the Dismissal

As I have found, my overall conclusion is that the dismissal was not unfair in all of the circumstances. In reaching this conclusion I had regard to the appeal against the investigation findings and the fact that the Complainant did not challenge these findings. I did so as this was a relevant factor in my consideration as to whether the Respondent had reasonable grounds for its finding that the alleged misconduct occurred, which was an essential factor in my assessment of the issue as to whether there was substantial ground justifying the dismissal. In the course of that assessment, I took account of the fact that an appeal was provided for in the Respondent’s procedures and was offered to the Complainant since these are factors which are not only relevant to the assessment but also specifically referenced in Section 6 subsection (7) (b).

I did not consider the issue of the non-pursuit by the Complainant of the appeal against the dismissal decision itself. I will now set out the reasons for not doing so.

In this case the Complainant did not exercise his right of appeal against the dismissal. Neither the Act nor the Code reference a positive obligation on an employee to pursue an appeal against a dismissal. The Respondent relied on what was described as “the principle that an employee has an obligation to exhaust the internal disciplinary process prior to seeking to enforce their rights externally”. I did not consider this argument or make any findings on it in making my determination that the dismissal was not unfair because, insofar as it related to an appeal against a dismissal, I do not deem it to be a correct interpretation of the law, for the reasons which follow.

The origin of the principle of the exhaustion of internal remedies as a condition precedent to seeking an external remedy (referred to hereafter as “the Principle”) has two sources: first, established industrial relations practice and second, the case-law that has evolved in relation to constructive dismissal.

The Principle is long-established and clearly understood in the context of industrial relations, but disputes heard pursuant to the Industrial Relations Acts – even where they involve unfair dismissal – are subject to different considerations to those which apply to rights-based claims under the Unfair Dismissals Acts.

In relation to Constructive Dismissal claims under the Unfair Dismissals Acts, these are rights-based and are regulated by the Unfair Dismissals Acts. However, an employee making such a claim does not have the benefit of the reversed onus of proof provided by Section 6 subsection (6). The employee bears the burden of proving that the breach of contract and/or unreasonable conduct of the employer gave him/her no alternative but to resign. In the determination of such claims the employee’s participation in the internal grievance procedures prior to resigning has evolved as an extremely important component in a successful constructive dismissal claim. This is the basis for the abundance of case-law in this area which establishes that (subject to limited exceptions) an employee must invoke and (again subject to exceptions) fully exhaust the internal grievance process including pursuing an appeal, before becoming entitled to claim constructive dismissal.

A claim under the unfair dismissals acts where dismissal is not in dispute (i.e. an actual as distinct from a constructive dismissal), is dealt with by reference to different principles where the dismissal must be positively justified by the employer. I am unable to see how the failure to exhaust an internal appeal against a dismissal decision can bar a claim or indeed can have any application to the proofs required to establish substantial grounds justifying the dismissal since that dismissal has already occurred before the opportunity to appeal arises.

The Respondent in its submission relied on a number of cases which it was contended, support the principle that an employee has an obligation to exhaust the internal disciplinary process prior to seeking to enforce their rights externally. Four of those cases concerned constructive dismissal. These were: Dunnes Stores v A Worker LCR22639, McCormack v Dunnes Stores, UD1421/2008, Conway v Ulster Bank, UD474/1981, and Travers v MBNA Ireland Limited, UD720/2006. The first of these cases, Dunnes Stores v A Worker, as well as being a constructive dismissal case was also a recommendation made under Section 20(1) of the Industrial Relations Act, 1969. For the reasons stated above I do not deem any of those authorities as supportive of the proposition that the Principle applies in the context of an actual dismissal case such as the present case as regards the failure to appeal a dismissal.

The case ofMartin Barry v Board of Management, St Oliver Plunkett SchoolUD93/2006 was also cited by the Respondent. This case involved a dismissal where an explanation was sought from an employee relating to an absence from work. The employee was called upon to provide explanations at a disciplinary meeting. The employer was not satisfied with those explanations and dismissed the employee on the basis of a loss of trust and confidence in him. The dismissal was upheld on the basis that the procedures were fair. The issue of an internal appeal was raised by the employee not the employer. The employee contended that the Respondent had deprived him of the right to appeal but the tribunal found as a fact that the employee did not invoke that right. The passage from the decision quoted by the Respondent was as follows:

“there is little point in an employee being reticent during a disciplinary process and forthcoming before a Tribunal. If an explanation is not given to the employer, the employee is depriving himself of an opportunity of exculpation”.

A full reading of the decision reveals that the point being made was that the employee failed to explain his conduct at the disciplinary hearing when he had the opportunity. The quotation does not support the proposition that an employee has an obligation to exhaust the internal disciplinary process by appealing the dismissal prior to seeking to enforce his/her rights externally.

In the case of Pungor v. MBCC Foods(Ireland) Limited UD584/2015, The Employment Appeals Tribunal made the following finding:

“The Tribunal finds that the respondent’s investigation and disciplinary procedure were fair and transparent. The appellant was offered to bring a colleague or trade union representative to the disciplinary meeting and she was afforded a right of appeal, which she did not avail of. The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process. Furthermore, the appellant made admissions in relation to the allegations.”

The E.A.T. was satisfied that the employer’s procedures were fair and transparent. It was also noted that the employee made admissions. The comments relating to exhausting internal procedures also appear but there is no explanation as to where that obligation might sit in relation to the statutory provisions nor does it appear that the point was fully argued before the tribunal. The reasoning of the tribunal is limited to the single passage quoted above.  Most importantly the issue of non-exhaustion of the internal process was not the sole basis for the finding.

If  the Principle were absolute and universally applicable, it suggests that the failure to exercise an appeal against a dismissal would by itself, be capable of operating as a bar to making any unfair dismissal claim including one where dismissal is not in dispute; yet no case has been cited to me and I am not personally aware of any where a claim involving a dismissal which was not in dispute, has failed on this ground alone. Where the failure to appeal a dismissal has been referenced in the decisions it has invariably been supplemented by other reasons, yet this should not be necessary. Neither does it makes sense that the failure to exhaust internal procedures can be a factor in the finding that the dismissal is fair as this suggests that that it has some influence but does not determine the outcome completely. It seems to me that the Principle either applies or it does not. If it did the claims would be dismissed on that basis. That is not what the cases reflect. Where the issue is referenced in the decisions (such as Pungor) it appears to be in the nature of a parallel finding or alternative finding but not the main reason for the failure of the claim. It is my firm view that in cases where dismissal is not in dispute the Principle of exhaustion of internal procedures, at least where this relates to post-dismissal procedures such as an appeal from the dismissal, does not apply to the assessment of the issue of whether the dismissal was unfair. It is for this reason that I did not consider it as part of that assessment in the present case.

The above comments should not be taken as authority that the non-pursuit of an appeal against a dismissal cannot be considered at all. Thus for example, if exculpatory evidence or medical evidence was available or came to light or other special circumstances existed and such issue/or issues was/were not brought to the attention of an employer before the dismissal, then the failure to pursue an appeal  might well constitute significant contributory conduct which in the event that the dismissal was deemed unfair might be considered when assessing redress under Section 7 subsection (2) if the failure to appeal could have been prevented or reduced the level of loss as per paragraph (b).  However, nothing of that nature arose in the present case and in any event, I have found that the dismissal was fair so the issue of redress does not in fact arise.

If the above assessment is incorrect, the reality is that whichever way one looks at issue of the non-pursuit of the appeal against dismissal, it is difficult to see how an appeal against the dismissal, if pursued, could have altered the outcome given that the offence was admitted and the penalty was driven by a very strong deterrent imperative arising from a strict,  zero-tolerance, policy.

Contributory Conduct

I would add one further comment on the issue of contributory conduct, and this relates to the argument made by the Respondent that if the dismissal were deemed unfair, the Complainant contributed 100% to his dismissal and so he should not be entitled to any compensation. Pursuant to Section 7 the issue of contributory conduct can only arise where a finding of unfair dismissal has been made. As no such finding is made in this decision the issue does not arise. However, for the sake of completeness and given that the issue was raised in submissions I would offer the view that even if the dismissal had been adjudged unfair for any reason, there would have been scope for a finding of contributory conduct pursuant to Section 7 subsection (2) paragraph (f) arising from the simple fact that  the Complainant’s conduct in taking the product without authorisation was the sole reason for the dismissal and thus “but for “ the Complainant’s actions his employment would have continued  and he would not have been dismissed. Although this is not the finding which I make as I have deemed the dismissal not unfair, the outcome would have been the same from the Complainant’s point of view.

Summary of Conclusions

1. The Complainant was on notice - by means of specific policies, which he signed on two separate occasions and by reference to his contract which he also signed - that the Respondent operated a zero-tolerance approach to theft.
2. The Complainant admitted that he removed product the property of the Respondent without having obtained prior authorisation from management.
3. The Respondent followed its own internal procedures in a manner which, although not perfect, nonetheless in the particular circumstances of the case, afforded the Complainant a reasonably fair opportunity to protect his interests. The Complainant was given adequate notice of the charges against him. An internal appeal mechanism was provided. The Complainant chose to represent himself and was given opportunities to make representations and to answer the charges. He did not indicate to the Respondent that he had any difficulty understanding the process. He did not make any representations as to why he should not be dismissed.
4. There was not an excessive delay in all of the circumstances between the discovery of the misconduct and the eventual dismissal.
5. Although the Respondent’s procedures did not make provision for union representation, the Complainant did not seek same and could not be said to have been denied the right to avail of adequate representation.
6. The failure to suspend the Complainant prior to dismissal was not unfair or unreasonable.
7. The payment to the Complainant in lieu of notice did not undermine the overall fairness of the dismissal process. 
8. The conclusion reached by the Respondent that the Complainant was guilty of gross misconduct, the manner in which it was reached, the rationale behind the designation of the behaviour as gross misconduct and the proportionality of the Respondent’s response to the misconduct were all within the range of responses of a reasonable employer such that it could not be said that in similar circumstances no reasonable employer would have dismissed.
9. There were substantial grounds justifying the dismissal.
10. In all of the circumstances, the Dismissal was not unfair

CA-00056324-001 - The Complainant was not unfairly dismissed.

Unfair Dismissal – Gross Misconduct – Unfair Dismissals Acts 1977 – 2015: Sections 6 (1), 6 (2), 6 (4), - Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996)  - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000  S.I. No. 146/2000 – Employer’s procedures making no provision for Union Representation and Not Informing Complainant of Right to Trade Union Representation – Union Representation Not Sought – Right to Avail of Adequate Representation - Whether Employee Denied Opportunity to Avail of Adequate Representation - Burns v Governor of Castlerea Prison  [2009] 3 I.R. 682; [2009] IESC 33 - Barry McKelvey (appellant) v Iarnród Éireann/Irish Rail (respondent)  [2021] 32 E.L.R. 165 ; [2021] 1 I.L.R.M. 181; [2019] IESC 79 –Bunyan v United Dominions Trust[1982] ILRM 404 - Looney & Co. Ltd v Looney, UD 843/1984 - Frizelle v New Ross Credit Union Ltd (1997) IEHC137 - Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008 - An Employee v. A Beverage Company ADJ-00027338 - Berber v Dunnes Stores Ltd [2009] ELR 61 - Employee v. Employer UD1048/2009 - Bank of Ireland v. James Reilly [2015] IEHC 241 – Principle of Exhaustion of Internal Remedies: Whether applicable to Cases where Dismissal Not in Dispute - Dunnes Stores v A WorkerLCR22639 - McCormack v Dunnes Stores UD1421/2008 - Conway v. Ulster Bank, UD474/1981 -  Travers v MBNA Ireland Limited, UD720/2006 - Martin Barry v. Board of Management, St Oliver Plunkett SchoolUD93/2006 - Melinda Pungor v. MBCC Foods(Ireland) Limited UD584/2015