Complainant

Respondent

Parties

Thomas  O Dwyer

Pga Tours Ireland Ltd t/a Roma Casino

Representatives

Gerard Kennedy Employee Advocate

Peter Dunlea Peninsula

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-00067088-001

01/11/2024

The Complainant was dismissed for allegedly being involved with a customer to defraud the Respondent of money from betting machines. The Respondent operates a gaming casino.

It was the Complainants contention that his dismissal was unfair both on a substantive and procedural basis. The decision to dismiss the Complainant was taken by Mr Stephen McCabe, an employee of an external HR Consultancy firm called Graphite HRM and communicated to the Complainant by way of Mr McCabe's letter dated 03/05/2024.

The Complainant had worked for the employer for 9 years prior to his dismissal and held the position of manager. In December 2023 the Complainant was invited to attend for what was termed as a chat with one of the company representatives Mr Kieran Clancy. The Complainant was not advised in advance of the nature of the meeting or that he might require representation. The Complainant, when attending the meeting, was surprised to find that Mr Clancy was accompanied by an unidentified female. The Complainant was advised that this person was attending for the purpose of taking notes. During the course of that meeting the employer outlined that they had a number of serious concerns regarding the Complainants behaviour and following a brief adjournment the Complainant was advised that a decision had been taken to suspend him with pay to allow for an investigation of the company's concerns.

The employer subsequently wrote to the Complainant to advise that they had decided to engage the services of an external Hr Company to conduct the investigation. Whereas the company hand book allows for the appointment of an external investigator the terms of the procedures state

"The investigation will be carried out by a designated member of the management team, or if necessary, in the case of any possible conflict of interest, an agreed external third party..

With regard to the above provisions of the company hand book the company did not identify any conflicts of interest that would inhibit the investigation being conducted by a member of the management team. Similarly the company did not seek the Complainants agreement to the appointment of the third party Investigator or make him aware that he had an entitlement to have an input to the selection of any Investigator.

Following on from his suspension the Complainant was contacted by Graphite HR to arrange an investigation meeting with their appointed representative Ms Aneta Trezciak. The initial meeting took place on the 01/02/2024 where the Complainant elected to be represented by Mr Frank McDonnell who is an experienced retired Employment Advice Officer with the ICTU affiliated Limerick Centre for the Unemployed. During the course of the meeting Ms Trezciak outlined in detail the allegations that were the subject of investigation. The Complainant in response offered cogent and truthful responses to the matters arising.  A further teams meeting was held via teams on the 14/02/2024. Following on from these meetings the Investigation Officer issued her report. In the findings Ms Trezciak upheld 3 Of the 4 allegations that had been presented in the terms of reference for the investigation dated the 09/02/2025.  In considering the terms of the report it is obvious that no real effort was undertaken by the Investigation Officer to in any way verify the defence put forward by the Complainant in response to the allegations. Instead the investigator suggests in her report that "In circumstances where there is no independent evidence to test a version of events against ,then there is an obligation on the individual to prove the assertion that they have made."

On numerous occasions during the course of the investigation the Complainant insisted that there were real and verifiable difficulties with the company computerised systems . This could have been verified by interviewing any member of staff. The Investigation Officer chose not to do so. In addition, in her report the Investigation Officer suggested that the Complainants representative refused to attend the second investigation meeting. This is not the case . Mr McDonnell did not attend on the basis that the Investigation Officer refused to accept his status as a representative and advised that he was not allowed to make representations or speak during the meeting. It is more than ironic that the employer in this case chose to avail of independent representation while denying the Complainant the same entitlements.

Following on from the issuing of the investigation report the employer again engaged the services of Graphite HRM to conduct a disciplinary hearing. ln securing the services of Graphite HRM to undertake this task the company relied on a provision of their handbook which stipulates under the heading third party involvement

"We receive the right to allow third parties to chair any meeting, for example disciplinary, capability, grievance, this is not an exhaustive list ".

However this stipulation does not remove the obligations of the actual employer regarding the decision making process. It should also be noted that the terms of the company handbook were drafted by Peninsula Business Services a company that we understand to be an associated company to Graphite HRM. That understanding is based on the fact that both companies share the same business address and the fact the Complainant during the processes involved received direct email communications from Peninsula Business Services confirming arrangements for meetings etc.

The disciplinary hearing took place on the 1/04/2024 with Mr Stephen McCabe. The notes of meeting provided to the Complainant clearly identify that Mr Mcabe had been granted the authority to determine the applicable disciplinary sanction up to and including dismissal. It should be noted that the notes confirm that the procedures being relied on by the organisation had only been provided to the Complainant in advance of the disciplinary hearing. This was the first occasion since joining the company that the Complainant had received a copy of the hand book being relied on by the employer in this process. The disciplinary hearing itself lasted a total of 12 minutes. Again the Complainant in his defence suggested that testing that had been carried out on the computerised system would have confirmed that the scenario being presented by the employer could not occur. The disciplinary officer undertook to raise questions regarding these tests. There is no evidence to suggest that he undertook that task.

Following on from the disciplinary hearing Mr McCabe determined that the Complainant was guilty of gross misconduct and issued a letter terminating his employment. It is of extreme concern that a decision to terminate the Complainants contract of employment was made by an individual who has no contractual relationship with the complainant. The company procedures clearly identify the individuals within the Roma Casino who have the authority to dismiss an employee. Mr McCabe is not identified in that listing.

In the letter issued to the Complainant  the disciplinary officer identified he could appeal the decision to Mr Dan Flynn.

The provisions of the appeal procedures confirm the following "From time to time it may be necessary to appoint an external person to hear an appeal,such an appointment will be deemed as a last resort and only used where absolutely necessary"

Given that there had been no involvement by senior management at either the investigation or disciplinary hearings there is no identifiable reason as to why the Complainants appeal could not have been dealt with internally. However management again decided to use the services of the same HR Company that conducted the investigation and disciplinary hearings to undertake the appeal.

The appeal hearing was conducted by a Ms Kelsey Lakes from Graphite HRM. in advance of the hearing Ms Lakes specifically advised the Complainant  that the hearing would not proceed if Mr McDonnell attended the same as the Complainants representative .As such the Complainant  attended the hearing without representation and following on from the appeal hearing Ms Lakes issued her report dated the 24/07/2024.  Ms Lakes in her report rejected Mr O, Dwyers appeal which has ultimately led to today's hearing.

It is a fundamental requirement in any case being pursued under the Unfair Dismissals Acts that an employer must demonstrate that they have applied the principles of natural justice. One of those principles emanates from case law and in particular the provisions of R V the Sussex justices ex parte McCarthy where in his judgement Lord Chief Justice Hewart held that

"But while that is so ,a long line of cases shows that it is not merely of some importance but of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done."

The import of that decision is that it is famous as a legal precedent in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision.

We would suggest applying that principle to this case where the employer decided to subcontract all decision making authority to a third party who has no contractual relationship with the employee and who have acted in breach of the provisions of their own procedures must offend the principles of the appearance of bias. The HR company involved are not only related to the organisation who drafted the company handbook but in their involvement clearly deviated from those same procedures

In utilising the services of the same HR company to conduct the investigation, disciplinary and appeals processes it is equally arguable that the employer breached the provisions of the legal maxim "Nemo Judex in Causa Sua" - no one can be a judge in their own cause. It is our contention that the usage of Graphite HR in all three processes removed the fundamental obligation placard on the employer to afford impartiality in the decision making process

In consideration of the arguments and evidence presented the Complainant requested a determination that the Complainants complaint under the Unfair Dismissals Acts is well founded and that he be compensated for the losses incurred as a result of same.. The monetary value of the losses involved stand at 14 weeks pay at the rate of 447 euros per week totalling 6258 euros. The losses involved have been mitigated by the fact that the Complainant  sourced alternative employment at a higher rate of pay in mid August 2024

The Respondent denied the allegations.

The Complainant was employed as a general operative in the respondent’s casino. A copy of the Complainants terms were supplied. Furthermore the complainant received an employee handbook, a copy of which was supplied.

In the summer of 2023, the respondent implemented a new software system called the Carnaby Providence 3 System to allow for real time monitoring and tracking of the slot machines in the respondent’s premises. This system further allowed for all customers to be tracked.

This system allowed the staff members to monitor all slots from the terminals in the casino. As part of this system, staff members had the ability to ‘cash out’ a machine. This was generally to be used when a customer had forgotten funds on a machine.

In December 2023, Kieran Clancey began a review of the respondent’s cash flow. This was based on the reports generated by the system and this was a standard procedure.

As part of this review, he noted that one customer, an individual known to be a friend of the Complainant, had won unusually large amounts of money and as such he elected to review the customers transactions closely.

As part of this Mr. Clancey contacted the operators of the software to determine what had occurred.

From the investigation of the software provider and Mr. Clancey it emerged that the customer in question was ‘being cashed’ out by a member of staff, however due an error in the system the money being cashed out remained on the machine.

Mr. Clancey reviewed the CCTV footage from the Respondent’s premises and it was determined that the Complainant had been responsible for many of the incidents identified.

By way of example a report detailing the transactions on the 23rd November 2024 was submitted.

In light of the alleged issues, the complainant was invited to a meeting with Mr. Clancey and Leona Hannon who was note taker in the meeting. In this meeting Mr. Clancey in investigating the issue, question the complainant regarding some the transactions.

Ultimately following this meeting, it was elected to suspend the complainant pursuant to the respondent’s disciplinary procedures to investigate the following allegations:

Alleged falsification of records, further particulars that on the 16h of December 2023 it is alleged that you logged into the system Carnaby Providence 3 System using your colleague details.

Alleged falsification of records, further particulars on the on the following date and times, 23rd November at 14.21,14.23 and 14.24 it is alleged that you falsely inputted data in the system Carnaby Providence 3 System which allegedly resulted in a failure to deduct the relevant amount €224.85 from customer X.

Alleged wrongdoing resulting in a financial loss to the Company, further particulars on the on the following dates and times23rd November at 14.21,14.23 and 14.24 it is alleged that you falsely inputted data in the system Carnaby Providence 3 System which allegedly resulted in a failure to deduct the relevant amount €224.85 from customer X resulting in a total loss of €224.85

Alleged falsification of records, further particulars on the on the following date and times, 14th December at 21.08,21.30 and 21.40 it is alleged that you falsely inputted data in the system Carnaby Providence 3 System which allegedly resulted in a failure to deduct the relevant amount €461.92 from customer X.

Alleged wrongdoing resulting in a financial loss to the Company, further particulars on the on the following dates and times, , 14th December at 21.08,21.30 and 21.40 ., it is alleged that you falsely inputted data in the system Carnaby Providence 3 System which allegedly resulted in a failure to deduct the relevant amount €461.92 from customer X resulting in a total loss of €461.92. 

A copy of the respondent’s Disciplinary Rules and Procedures were supplied.

 In particular the respondent would refer to paragraph 4 (b) and (c) as follows:

On occasion it may be necessary for the company to conduct an investigation meeting to clarify a particular incident or occurrence prior to any potential disciplinary hearing. The purpose of this investigatory meeting is to establish the facts about a particular incident or occurrence, and the details of which will remain completely confidential. The investigation will be carried out by a designated member of the Management team or, if necessary, in the case of any possible conflict of interest, an agreed external third party. In either case, the person nominated will have appropriate training and experience and be familiar with the procedures involved. The designated investigator will meet with you and any witnesses or other relevant persons individually. The person investigating the complaints will make every effort to carry out and complete the investigation as quickly as possible. This investigation meeting itself should not be interpreted as a disciplinary hearing as no disciplinary sanction would ever be issued on foot of an investigatory meeting. Instead, the facts established in an investigatory meeting may be used to identify whether or not a formal disciplinary hearing ought to be conducted;

 on some occasions temporary suspension on contractual pay may be necessary in order that an uninterrupted investigation can take place. This must not be regarded as disciplinary action or a penalty of any kind;

 Ultimately, in line with the policies and procedures of the respondent, the respondent elected to hire a third party, Graphite HRM to conduct the investigation against the complainant. This was due to the seriousness of the accusations and the fact that Mr. Clancy did not have sufficient experience to handle such a process. 

This process formally commenced on the 1st February 2024 with a meeting with the complainant, his representative Frank McDonell and the investigator for Graphite, Ms Aneta Trzeciak. In this meeting the investigator put the accusations to the complainant and included a review of the CCTV footage relating to the incident. Some of the footage did not work and as such a second meeting was held on the 14th February 2024. The complainant’s representative did not attend this hearing but the complainant stated he was happy to proceed. 

Ultimately following these meetings, the investigator prepared a formal Investigation Outcome Report dated the 15th March 2024. Ultimately, the investigator determined that the complainant had a case to answer regarding allegations 1, 2 and 4 as follows: 

Alleged falsification of records, further particulars that on the 16h of December 2023 it is alleged that you logged into the system Carnaby Providence 3 System using your colleague details.

Alleged falsification of records, further particulars on the on the following date and times, 14th December at 21.08,21.30 and 21.40 it is alleged that you falsely inputted data in the system Carnaby Providence 3 System which allegedly resulted in a failure to deduct the relevant amount €461.92 from customer X

Alleged wrongdoing resulting in a financial loss to the Company, further particulars on the on the following dates and times, , 14th December at 21.08,21.30 and 21.40 ., it is alleged that you falsely inputted data in the system Carnaby Providence 3 System which allegedly resulted in a failure to deduct the relevant amount €461.92 from customer X resulting in a total loss of €461.92.

 It was held that there was insufficient evidence regarding the other allegations.

Ultimately on the basis of the Investigation Outcome Report it was elected to take disciplinary action against the complainant.  The disciplinary was conducted on the 10th April 2024 and the complainant was invited to the hearing on the 2nd April 2024. He attended the hearing without a representative. The meeting was conducted by the 3rd party Graphite HRM with it being conducted by Stephen McCabe.  The report was issued on the 3rd May 2024.The report assessed the answers the complainant has provided at the disciplinary hearing and ultimately made the following finding:

 You, The Complainant  did allow a customer to be paid twice, resulting a financial loss to the company.

In your Employee Handbook, two of the listed examples which may result in gross misconduct are:

Theft or unauthorised possession of money or property, irrespective of value, whether belonging to us, another employee, or a third party

Any action, inaction or wrongdoing committed by you during the course of your employment that would result in a financial loss to the Company.

Whether the payments were made knowingly and with malicious intent for personal profit, or whether it was done unintentionally is irrelevant. Either of these may constitute gross misconduct.

In consideration of the above and all supporting documentation, I find that your actions amount to gross misconduct, as such dismissal from your employment without notice is the only appropriate course of action.

As such the complainant was dismissed effective from the 7th May 2024. 

On that day, in line with the respondent’s policies and procedures, the complainant appealed his dismissal on the following points:

Since the introduction of Carnaby Providence 3 system, we were told that it is not an issue with employees transacting under different login names.

The system was inadequate of multiple sign ons.

Previous users in the system did not sign off when they finished their working day.

I am accused of topping up a customer’s card. This cannot be done and has been tested by the owner and technicians.

I have visual evidence that is showing that the system is faulty and is displaying incorrect top ups which I forwarded to the owner on the work phone at the time. Which shows I did report incidents that I noticed to the appropriate person.

The root cause of the financial loss is the operating system. This system is incorrectly calculating payments. This has been reported to the owner previously.

It is the duty of the owner to have the system tested and adjusted to ensure incorrect transactions do not happen.

For the record, I was never provided with an employee handbook which keeps being referred to or a new employee contract when I received a promotion, and my rate of pay was put up. 

The Appeal was conducted by Ms. Kelsey Lakes on the 11th June 2024. The complainant informed of his right to representation during the hearing, however, he was unaccompanied and confirmed that he would proceed on his own.  

Ultimately the complainant failed to provide any alleged evidence supporting his grounds of appeal and as such his dismissal was upheld by way of the report dated 24th July 2024.

Without prejudice to the preliminary issues raised in respect of this claim, the Respondent denied that the Complainant was unfairly dismissed. 

As per the Handbook, Disciplinary Rules and Procedures, Rules covering

 J) theft or unauthorised possession of money or property, irrespective of value, whether belonging to us, another employee, or a third party;

r) any action, inaction or wrongdoing committed by you during the course of your employment that would result in a financial loss to the Company; 

It was submitted that the complainant was found to have breached the polices and procedures of the respondent in that on the balance of probabilities the complainant through action or inaction caused a loss to the company. 

The Respondent relies on section 6 (4) of the 2015 Act which states 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

The conduct of the employee

 The Complainant’s conduct was deemed gross misconduct and as such the Complainant was dismissed in accordance with the Respondent’s disciplinary policy and procedures.

 The Respondent further relies on the Employment Appeals Tribunal decision in Hennessy -v- Read & Write Shop Ltd UD 192/1978 which set out the general approach in respect of dismissals for conduct:

 In deciding whether or not the dismissal of the complainant was unfair we apply a test of reasonableness to

The nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the complainant, and

The conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the complainant should be dismissed.

The Complainant was provided with the Respondent’s handbook when he commenced his employment and as such was provided with a copy of the disciplinary procedure of the Respondent from that time.

 This complies with section 14(1) of the 1977 Act, which states:

 An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee. 

 A copy of the disciplinary procedure was also provided to the Complainant at both the investigation stage and the disciplinary hearing stage and as such was well aware of the procedure that the Respondent intended to follow. 

 In the High Court decision of Frizelle -v- New Ross Credit Union Ltd [1997] IEHC 137, Flood J set down a list that must be established by the Respondent in order to support their ascertain that the dismissal for conduct of the Complainant was fair. 

 The list set down by Flood J is as follows:

 The Complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed and his or her version noted and furnished to a deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

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.

 It is submitted that in this current matter before the WRC, all of the above premises were met by the Respondent and as such the decision to dismiss for conduct was fair in the circumstances. 

 The above High Court decision was supported by the Labour Court in their decision in Kilsaran Concrete -v- Vet UDD 11/2016 where the Court stated the following:

 However, there are a certain fundamental requirements of fair procedures that cannot be dispensed with regardless of the particular circumstances that arise in an individual disciplinary matter. They include:

The requirement to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process;

The requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and

In the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated. 

 The Respondent submitted that the above three fundamental requirements of fair procedure as set down by the Labour Court were followed and adhered to when dealing with the Complainant.

 It is therefore submitted that the Complainant was fairly dismissed and as such, the complaint relating to the alleged unfair dismissal should be struck out and no award made.

There are two fundamental things to look at in evaluating whether a dismissal was fair or unfair. The first is did the Respondent have substantial grounds for the dismissal. The second is was the procedure used by the Respondent to dismiss the employee fair, reasonable and in line with the stated procedure in the contract/handbook governing the employment. In this case a third element has to be considered as the dismissal was implemented by a third party and not the person defined as entitled to dismiss the Complainant in their agreed terms and conditions of employment.

The Law.

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

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

(a) the capability, competence or qualifications of the employee for performing work of a kind which he was employed by the Employer to do.

(b) the conduct of the Employee

(c) the redundancy of the employee and

(d) the employee being unable to work or continue to work in a position which he held without contravention by him or by his employer of a duty or restriction imposed by or under any statute or instrument under statute.

Section 6(6) of the UD Act states:

“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 grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.”

Section 6(7) of the UD Act states:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had [….]

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

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

Section 14(1) of the UD Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Section 7(2) of the UD Act provides that an Adjudication Officer may consider “compliance or failure to comply by the employer in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister”.

The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that: the reason for the dismissal was substantial and/or within the parameters of Section 6(4); and that it acted reasonably and in accordance with its disciplinary procedure or relevant code of practice.

Band of Reasonableness:

It is well-established that it is not the function of an Adjudication Officer to re-investigate disciplinary complaints or to substitute their view for that of a respondent employer. Rather the focus is whether the decisions arrived at are reasonable, based on the information available. The Labour Court summarised this rationale in Clancourt Management Ltd T/A Clancourt Management v. Mr Jason Cahill, UDD2234, 27 May 2022:

“In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, to determine if the dismissal falls into a ‘band of reasonableness’, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that ‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’ He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness? […] It is not the function of the Court to re-investigate disciplinary complaints. In looking at the outcomes of the investigations, the Court needs to consider if the decisions arrived at are rational, based on the information available to the investigators.”

Notably, as held in the same case, “a failure to adhere to proper procedures renders a dismissal outside a band of reasonableness”.

Fair Procedure:

The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the conduct or poor performance of an employee and at the same time, afford the employee the opportunity to answer the allegations and make representations as to why he/she should not be disciplined or dismissed. This is enshrined in S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

In this case the Employer alleged they had grounds to dismiss the employee based on his conduct.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a 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”.

Also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

Finally, in dealing with the issue of “Procedural v Substantive Justice” in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”.

The core case against the Complainant was that he was involved in a situation to assist a customer on a number of occasions to take cash from the business under false pretences as a machine was faulty and between the Complainant and the Customer they used this to credit the customer with funds that were not won.

The Complainant Representative set out their case. The Complainant did not give evidence directly. The Representative stated the Complainant worked for the Respondent for 9 years and a new system was installed in 2023. He advised there was a tablet in each booth and each machine was monitored.  He advised that a review was set up in December 2023 as one customers winnings were larger than before. He advised the Complainant engaged with a 3rd party and advised all employees had the ability to cash out a machine. He advised on occasions that a credit would go onto a customers card but remain on the machine also. He advised there was another employee involved, related to Mr. Clancey. The Representative conceded that the Complainant and the customer were friendly but that this was a part of the job for the Complainant to be friendly with customers.

Mr. Clancey gave evidence he was the Accounts Manager and that he did not do the investigation as there was a conflict of interest. He advised he also hired Graphite Hr to do the investigation as they had more experience in these matters than he had. He also advised that they were hired to conduct the disciplinary process. He advised the dismissal and appeal were held by non employees and it was upheld. He advised the new system could monitor digitally the machines and there was a review of machines weekly. He advised he could see one customer was getting out substantially more than he was putting in. He advised how the Complainant worked the system to the benefit of the customer. He advised he believed the Complainant worked in concert with the Customer knowing there was a glitch in the system that allowed pay-outs while retaining credit on cards. Mr. Clancey advised he monitored the CCTV to evaluate what was happening. He advised he held a meeting with the Complainant and went through the CCTV and went through a detailed Excel analysis of the transactions. This detailed analysis was provided to the parties and the Hearing. He advised he suspended the Complainant with pay pending the independent investigation. He advised the investigation upheld wrongdoing by the Complainant and he was dismissed. Mr. Kennedy cross examined Mr. Clancey and asked him to confirm the note taker at the initial meeting with the Complainant was an employee of a third party and Mr. Clancey confirmed she was. He queried who suggested Graphite HR for the process. He asked did Mr. Clancy give advance notice of the nature of the first meeting to the Complainant and Mr. Clancey advised the Complainant was aware of the issues with the system and he wanted to talk to him. He questioned did Mr. Clancey seek consent from the Complainant to the use of Graphite as per the terms of employment for a third party Investigator to be agreed. Mr. Clancey advised he would need to review his emails. Mr. Kennedy questioned as a matter of law if a dismissal had taken place as the contract was terminated by a third party and not the nominated person in the contract of employment. He asked Mr. Clancey was he aware that the person who dismissed the Complainant did not have the legal authority to dismiss the Complainant. Mr. Kennedy asked Mr. Clancey was there any evidence the Complainant benefitted personally and alleged he did not and that the Complainant had advised Mr. Clancey of the faults in the system on a number of occasions.

Mr. Frank Mc Donell gave evidence to the Hearing and confirmed he was assisting the Complainant with his defence during the process and that he was not allowed participate at one meeting as there was a dispute that only a work colleague or Trade Union Representative could assist the Complainant and he told the Complainant to go ahead and he would wait outside and to come out to him if he needed advice. Mr. Mc Donell said he gave this advice as the Complainant had a family to support and it would be seen negatively if he did not participate in the process. Mr. Mc Donell was cross examined by Mr. Dunlea and asked to agree that the contract allowed for a Trade Union Representative or Work Colleague to represent the Complainant and Mr. Mc Donell  replied that the Complainant was entitled to his choice of representative like the Respondent was. Mr. Mc Donell was asked did he advice the Complainant throughout the process and Mr. Mc Donell confirmed he did.

I do not intend to go into the grounds for not allowing Mr. Mc Donnell attend the appeal hearing with the Complainant as these were not fully explored at the Hearing. However, as a matter of balance, I observe that the Respondent used third parties extensively during the initial meeting, the investigation, disciplinary and appeal process and the denial of a person the right to representation in a dismissal case, whether covered by the contract or not, is a serious issue.

I have considered this case and, to a degree, due to the Complainant finding a better paid job very soon after being dismissed the effects of the dismissal are mitigated, financially, by his actions. With regard to the first issue of whether the Complainant participated in a method to give a customer a benefit he was not entitled to was hotly debated. The Respondent provided substantial evidence to try support this but none of the evidence showed that the Complainant directly benefited from the alleged going round the system.  There was no question the customer did benefit. The Complainants Representative made out the Complainant had previously told the company of the faults and this was not denied by the Company. I find it difficult from the submissions and evidence to decide this case on the first issue. With regard to the second issue the situation is crystal clear. The Respondent was required to agree, in the contract of employment they wrote,  a Third Pary  Investigator with the Employee if an investigation was to be conducted. This did not happen. The contract was also quite specific as to who, and only who,  could dismiss the Complainant, it was one of two named persons, depending on the category of employee the Complainant was put into. This did not happen as the Complainant was dismissed by letter from a  third party who conducted the disciplinary process. The contract allowed for a third party to “chair” a disciplinary process but there is no mention of them deciding on whether to dismiss or not and the evidence is to the contrary, it was one of two named persons. The advisability of putting named persons who can dismiss in a contract is not for the Adjudicator to comment on. I have to deal with the situation as I find it from the evidence submitted. The Complainants contract was terminated by a third party, acting for the Respondent, and I do not intend to go into the legal ins and outs of this in this decision as the other two prior issues are equally important and decisive in this case. But the legal question of whether a person who is not a party to a contract can legally terminate the contract could have to be explored more fully. The whole trend of “outsourcing” all aspects of this investigation, disciplinary an appeal process conveys a very much “hands off” approach by the Respondent, albeit for the reason they felt they did not have the expertise to manage these processes.  

Overall, I find that the substantial grounds for dismissal were inconclusive but I feel both parties were aware of the glitches in the system.  I find that the Respondent did not afford the Complainant fair procedure in line with the contract of employment and it is on this element I decide that the dismissal is unfair. Having considered the overall situation, I find that compensation of 50% of the Complainants loss is a fair outcome and I award him 3, 129 Euros as compensation for breach of his employment rights.

I find the dismissal was unfair and award the Complainant 3, 129 Euros as compensation for breach of his employment rights.

Unfair Dismissal