Complainant

Respondent

Parties

Gerard  Carey

DAA Plc Dublin Airport Authority Plc (Public Limited Company)

Complainant

Respondent

Representatives

Vivian Cullen of SIPTU

Tina Ochelle Deasy of  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-00059872-001

08/11/2023

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

CA-00059872-002

08/11/2023

The issue in contention was the alleged unfair dismissal of an Airside Operations Manager, after an Appeal Hearing, in October 2023.

The employment began in March 1998 with a promotion to the final position in August 2008.

The rate of pay was stated to have been €65,143 per annum for 36-hour week.

1:1        Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA--00059872-001

The Complainant gave an Oral Testimony and was represented by Mr Cullen of SIPTU. A written submission was provided.

In essence, the Complainant’s case was that while he had admitted that he had been arrested for alleged theft on the 29th June 2023 by the Police, he was then subjected to a lengthy and Unfair prejudicial Respondent process of Investigation, Disciplinary & Appeal Hearings.

Throughout the process no proper regard was had by the Respondent Managers to the mental/psychiatric state of the Complainant which had without doubt contributed majorly to his most regrettable actions. Medical evidence was referenced which clearly indicated that the Complainant had been suffering from severe mental issues related to changes in life / family circumstances and family illnesses. Mr Cullen pointed out that Employer Employee Assistance in this delicate area is virtually non-existent. He referred to what was available, as being seen, colloquially, as “Career Suicide”. The Respondent employer had a duty of care in this area which was clearly lacking and had failed the Complainant.

In addition, he argued strongly that the Appeal Hearing by Senior Manager, Ms M, on the 9th October 2025 had been simply a straight forward endorsement, a “Rubber Stamping” of Mr D, the  Deciding Manager’s decision of the 22nd August 2024. Her actions were blatantly, legally, prejudicial.

The fair balance of natural justice had not been observed. Extensive Medical evidence had been ignored that indicated clearly that the Complainant had been unwell.

Mr Justice Flood in Frizelle v New Ross Credit Union Ltd, 1997] IEHC 137 was cited by Mr Cullen and in particular the learned Justices comments on proportionality and natural justice “being paramount”.

A decision to dismiss, in these circumstances, an employee of the unblemished record and seniority of the Complainant was completely “disproportionate and too severe a penalty given the overwhelming mitigating circumstances”.

1:2      Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00059872-002

As the Dismissal had been for Gross Misconduct no Minimum Notice had been paid. The complaint was for the appropriate Statutory Minimum notice.

2:1        Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA--00059872-001

The Respondent was represented by Ms Ochelle Deasy of IBEC supported by a number of Respondent Senior Managers. Extensive Oral testimony was provided and supported by a comprehensive written submission.

In essence, the basic facts of the case were not disputed. The Complainant had been arrested for Theft from Retailers in the Airport Complex. A most comprehensive Investigation, Disciplinary /Dismissal and Appeal process had taken place. The Complainant was at all times fully represented by SIPTU both by local lay officials and later by professional Senior Representatives. All documentation was absolutely correct and SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures was followed precisely. The Employment has a complete set of Employment Procedures agreed with all Representative Bodies at the Airport Complex.

The key issue had been one of a Breach of Trust between the Respondent and the Complainant.

The Airport, especially the “Airside” Section, was an area of exceptional Security & Safety regulation. All employees in this environment had to be of the highest levels of Trust and must completely enjoy full management confidence.

The deciding Manager at the Disciplinary hearing on the 22nd August, Mr D, in his extensive Oral Testimony, indicated that he had carefully considered all the evidence and the representations from SIPTU and the Complainant personally. It was not an easy decision to dismiss such a senior employee of long service, but he had felt that there were no realistic alternatives. Switches to lesser roles in the complex were not feasible.

The Appeal Decision Officer, Ms M, had an Appeal hearing on the 9th October 2023. She gave extensive Oral Testimony regarding her decision to reject the Appeal. The key factors were as stated by Mr D, the high level of Confidence and Trust required in the Complainant’s position. He had been a senior executive in an Airside Safety and highly regulated Operational role. It was common cause that the Complainant had stolen from Retailers. She completely refuted any suggestions that she was not Independent from Mr D in her decision making.

Ms M emphasised that the Breach of Trust, in such a significant Safety and Regulatory role, had been so fundamental that any possible confidence in the Complainat had been lost and would realistically never be regained. The Medical evidence, the Complainant’s GP Report and an Occupational Health assessment had been carefully considered. It was noted that the Complainant had not sought Occupational, or Welfare help prior to the unfortunate incidents that had led to his arrest. Overall, the Medical evidence was not such as to outweigh the overall decision to dismiss.

On cross examination from Mr Cullen of SIPTU and some brief questioning from the Adjudication Officer it was confirmed that Management consideration had been given to finding an Alternative Role, maybe even at a lesser rate of pay as an alternative to dismissal. Regrettably no such role, bearing in mind the stringent Regulatory and Safety environment of the Airport, could be identified.

The Respondent cited extensive case law in support of their position, Mullane v Honeywell Aerospace Lt UD 11/2008, Panasov v Pottel Pig Farm UDD1735, Looney v Looney UD 843/1984 and O’Callaghan v Dunnes Stores UD54/2012.

Ms Ochelle Deasy of IBEC, for the Respondent, argued that the great body of case law precedent, made it clear that it was not the function of a Tribunal or in this case the Adjudication Officer to effectively “re run a case” to seek a different outcome. The Adjudicator had to ensure that fair procedures and natural justice had been followed and once satisfied of this not seek to alter the Respondent employer decision.

In considering the “Proportionality” argument the Respondent cited the landmark cases of British Leyland UL Ltd v Swift (1981) IRLR 91 and Foley v Post Office (2000) ICR1283 where the issue of the Band of Reasonableness was considered by Lord Denning. In considering alternatives to Dismissal such as Reinstatement or Re engagement, Ms Deasy of IBEC argued that the Irish Supreme Court case of State v Pharmaceutical Union and the EAT supported the Respondent view that the alternatives were not applicable in this case.

2:2      Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00059872-002

The Respondent argued that as the Dismissal had been for Gross Misconduct no Notice was payable citing Section 8 of the Minimum Notice & Terms of Employment Act, 1973

3:1        Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA--00059872-001

3:1: A      Adjudication Officer discussion. - Legal position – SI 146 0f 2000, Respondent consideration of Evidence / Mitigating Circumstances / Issue of Proportionality

Two key questions arise in this case,

(1)   Was there an Unfair Dismissal?

(2)   Depending on the answer to question 1 the question of Proportionality of the sanction imposed has to be considered. Three Outcomes are available to an Employee – Re Instatement, Re Engagement, Financial Compensation

3:1: B       Was there an Unfair Dismissal?

There was no doubt that a full and fair Investigation /Disciplinary Appeal process had taken place. SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures was followed precisely. The requirements of Legal precedent are well demonstrated by Mr Justice Flood as set out below. Mr Cullen of SIPTU referred extensively to this case.

In Frizelle v New Ross Credit Union Ltd, 1997] IEHC 137, Flood J., stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

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

2.

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.

3.

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

4.

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

5.

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.

Put very simply, principles of natural justice must be unequivocally applied.”

Having listened to the Oral Testimony & read carefully the Written submissions and considered Mr Justice Flood’s comments, the preliminary Adjudication finding had to be that the Dismissal was procedurally Fair.

At first consideration, No Unfair Dismissal took place.

 However, the question of Proportionality then arises in considering a final Adjudication outcome.

At this stage and referring to Question two above some reflection on the role of an Adjudicator is warranted.

3:1:C        The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length.

The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.

The Tribunal applies the test of “reasonableness” to

1.      the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.      whether the procedures adopted were fair and reasonable and

3.      the reasonableness of the conclusion arrived at by the Respondent.

3:1:D    Role of the Adjudicator in considering Sanctions   

The issue is then how far should an Adjudication Officer intervene in a sanctions / judgement of Reasonableness issue.

In the oral testimony from the decision-making Managers, Mr D, at Dismissal and Ms M, at Appeal the overwhelming factor was the Aviation Safety and Regulatory Environment. The Complainant had a senior Airside (unimpeded access to Aircraft etc) position. Manager, Mr D, had been particularly demonstrative on the view that the Employer simply could no longer Trust the Complainant in the Safety/ Regulatory area.

Trust and Organisational Confidence were paramount and had been betrayed irrevocably.

On questioning and cross examination from Mr Cullen from SIPTU and some inquiries from the Adjudicator the availability of Alternative and much lesser Roles was discussed. Possibly, somewhat facetiously, the role of a Car Park Attendant in one of the Long Stay Car parks, geographically, well off the Airport site, was mentioned.  Mr D, the Dismissal decision maker, answered clearly that firstly there was the major issue that the Management could no longer Trust or have confidence in the Complainant, and secondly no such vacancies were currently available. It would be completely inappropriate to have a former Senior Person such as the Complainant in such a, effectively demoted, Role. Regrettably Dismissal was the only possible option.

As an aside It was noted that the Complainant was not convicted in the ordinary Courts of the Theft charges brought by the Gardai. However, it was argued that the Employer/Employee Trust had been broken and as such had to feature in a Dismissal consideration.

The discussion between the Parties and in cross examination also focused on the extent that the Medical/Psychological evidence from the Complainant had been considered in the Dismissal and or Appeal process.

Reading the minutes of the Disciplinary hearing on the 22nd August 2023 the background issues were discussed with Mr D and the Complainant’s Rep, Mr Philips, from SIPTU. There can be no doubt that the Complainant had experienced quite a lot of severe external personal pressures. The issue was considered afresh in the Appeal Hearing of the 19th October 2023 by Appeal Manager, Ms M. The Complainant was represented again by Mr Philips. Ms M, the Appeal Manager, was forthright in her recollections that she had carefully considered all the evidence including the Medical factors.

The question of the Business relationship, the degree of Independence, between Mr D and Ms M was discussed. In Oral testimony Ms M outlined her seniority and experience. She presented as a competent Senior Manager well capable of forming an Independent view irrespective of Mr D’s position.

The Adjudication conclusion from the Oral testimony of both Managers had to be that the Complainant was in a Senior Airside Operational and Safety role. Ms Ochelle Deasy of IBEC emphasised that in this role Trust and Confidence were critical factors even to the extent of outweighing mitigating factors that might have applied in a lesser or different scenario.

3:1: E       Adjudication summary

In the final analysis the rules of Natural Justice were observed throughout. Only the Respondents have the expertise and experience to evaluate these Trust and Safety Confidence issues in a major Airport setting.

It is useful to revert again to the cases of Foley v Post Office [2000] ICR 1283 which was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The final Adjudication conclusion has to be that the Respondent employer made a well-considered decision, drawing on their particular Aviation & Safety expertise.

It is not the role of the Adjudicator, having considered all the evidence both Oral and Written, to second guess this decision.

Under the terms of the Unfair Dismissal Act,1977 the Dismissal was not Unfair

 3:2      Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00059872-002

As the dismissal was not found to be Unfair the Minimum Notice complaint has to fail. 

Unfair Dismissal, Minimum Notice, Role of Adjudicator. Proportionality