Complainant

Respondent

Parties

Jason  Hogan

Kareplan Limited

Representatives

  In person

 Jacob and Twomey Solicitors

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-00068315-001

21/12/2024

The complainant was employed by the respondent as a training manager from 3rd February 2023 until his dismissal for gross misconduct on or about the 15thNovember 2024. The complaint, which was submitted to the Workplace Relations Commission (WRC) on 21st December 2024 relates to an alleged unfair dismissal.

The respondent confirmed that the complainant was employed as a training manager from 3rd February 2023 until 15th November 2024. The respondent outlined the complainant’s role in co-ordinating the training needs of the staff and the responsibilities of the staff in question to upload their certification in respect of the required training via a HSE portal.

The respondent stated that in October 2024, it was brought to management’s attention that the complainant may have uploaded training certification in respect of a staff member in circumstances where the required training had not been completed and that he had also obtained personal log in details in relation to the staff member without management instruction.

The respondent stated that it then commenced an investigation and disciplinary process in relation to the issue and it became clear that the complainant had uploaded approximately six training certificates in respect of his colleague. The respondent’s position was that it followed its policies and procedures in relation to the process and ultimately found that the employment relationship was untenable and the complainant was dismissed with immediate effect for gross misconduct. The respondent stated that the complainant was afforded the opportunity of representation throughout the process and did not avail of same. The respondent also confirmed that the complainant did not exercise his right of appeal in relation to the dismissal.

Legal submissions                                                           

The respondent outlined the provisions of Section 6(4)(b) of the Unfair Dismissals Act, 1977 in relation to a dismissal which occurs wholly or mainly as a result of the employees conduct. The respondent also cited the relevant case law in respect of the employer’s obligation to act reasonably and within the band of reasonable responses of a reasonable employer in relation to the disciplinary process which resulted in the complainant’s dismissal.

The respondent also referred to Section 7(2)(c) of the Unfair Dismissals Act, 1977 and the complainant’s duty to mitigate his losses. The respondent quoted several precedent cases on this point and the high standard required of the complainant in establishing that he had made efforts to mitigate his losses.

The complainant represented himself at the adjudication hearing and addressed his complaint by way of sworn oral submissions and evidence.

The complainant’s position was that he mistakenly uploaded his colleague’s certification for manual handling training. The complainant stated that the patient handling element of the training had not been completed when he uploaded the certificates. The complainant stated that he was not acting dishonestly and did not accept that he had breached the employers trust in him. The complainant also accepted that he had uploaded approximately five or six training certificates to assist his colleague who needed help. The complainant stated that he took his role seriously and always tried to be supportive of his colleagues and provide help to them whenever he could. The complainant stated that he felt he was treated unfairly by the employer throughout the disciplinary process and that the sanction of dismissal was excessive and disproportionate. The complainant is seeking compensation in relation to his complaint.

The Applicable Law

Section 6(1) of the Unfair Dismissals Act, 1977 provides as follows:

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.

Section 6(4)(b) of the Unfair Dismissals Act, 1977 provides as follows:

(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) not relevant…….

(b) the conduct of the employee,

Reasonableness

Section 6(7) of the Unfair Dismissals Act, 1967 at relevant part provides as follows:

6(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

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

The respondent contends that it acted reasonably in dismissing the complainant in accordance with Section 6(4)(b) of the Unfair Dismissals Act, 1977 and that it in the circumstances of the complaint the dismissal of the complainant was the proportionate sanction when considering the actions of the complainant and the definitions of gross misconduct included in the respondent’s disciplinary procedures.

I note that in The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is, however, not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”

Gross misconduct

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.

Mitigation of Loss

The complainant submitted clarification post hearing in relation to his efforts to mitigate his losses. He commenced his first employment following the dismissal on 12th December 2024 and remained in that employment until approximately the 17thFebruary 2025. The complainant then commenced new employment on 24th February 2025 and remains employed to date. I am satisfied that the complainant’s efforts to mitigate his losses resulted in only five weeks of unemployment from the date of his dismissal until he commenced his current employment. I note that the new employment is paid at approximately €10k less per annum than the complainant’s employment with the respondent.

Conclusions

I have considered the respondent’s written submission and the oral submission and evidence given by the complainant. The complainant was dismissed for gross misconduct having uploaded training certificates in respect of a colleague in circumstances where the entirety of the training in question had not been completed. The complainant acknowledged that this was an error on his part, and he had apologised for same. While the complainant stated he was acting in good faith to assist his colleague and would never purposely act in a dishonest way, he accepted in hindsight that he should not have uploaded the documentation in question.

I note the provisions of the respondent’s disciplinary process and particularly Section E which provides examples of gross misconduct. Within the examples of gross misconduct, the following is included:

(g) deliberate falsification of any records (including timesheets, absence records and so on in respect of yourself or any fellow employee).

From a procedural perspective, I note that the respondent carried out a thorough investigation and disciplinary process which ultimately led to the complainant’s dismissal. While the complainant was afforded the opportunity to appeal his dismissal, he chose not to do so. The reasons the complainant did not appeal his dismissal were sent to the respondent by email on 20th November 2024 and at relevant part state as follows:

Dear Karen,

……...

………

I feel an appeal to reconsider the investigation findings would be pointless at the present time considering the extreme bias shown toward me during this lengthy ordeal and the detrimental effect it has had on my physical and mental wellbeing.

Jason Hogan

As clarified to the parties at the adjudication hearing, the role of an Adjudication Officer (AO) in a complaint of alleged unfair dismissal is to hear from the parties and decide if the respondent acted within the band of reasonable responses of a reasonable employer in respect of the dismissal. In relation to the current complaint, it is also necessary to decide whether the actions of the complainant constituted gross misconduct warranting summary dismissal.

While I note the bona fides of the complainant and his acceptance that he had made a mistake in terms of uploading the training records and had apologised for same, I accept the respondent’s position that the complainant’s actions ultimately resulted in a breach of trust and confidence in him which rendered the employment relationship untenable. I also accept that the complainant’s actions constituted gross misconduct in accordance with Section E(g) of the respondent’s disciplinary process.

Having considered the written and oral submissions of the parties and the precedent case law cited, I find that the respondent acted reasonably towards the complainant throughout the investigation and disciplinary process and that he was not unfairly dismissed.

For the reasons stated above, I find that the complaint is not well founded.

Unfair dismissal, gross misconduct

Precedent case law cited by the respondent:

O’Grady v Heraeus Metal Processing Limited (ADJ-00029216)

Looney v Looney UD83/1984

British Leyland UK Ltd v Swift (1981)

Allied Irish Banks v Purcell [2012] E.L.R. 189

Employee v Employer ADJ-00031368

A General Operative v A Food processing Company ADJ-00007074

Sharon Wilshire v Bath Spa University

Sheehan v Continental Administration Co Ltd (UD858/1999)

Organic Lens Manufacturing v McAllister UDD2137

Tanneron Limited v Conolin UDD2151

C and F Automotive Limited v Slomskiene UDD1816

McDonald v Brickmore Construction ADJ-00026532

Burke v Superior Express Limited UDD1227/2014

Castolin Eutectic Ireland Limited v Vasaraheli UDD2313