Complainant

Respondent

Parties

Graham  Carrick

Goodwins  Building Providers

Representatives

John Barry Management Support Services (Ireland) Ltd

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-00069946-001

12/03/2025

The complainant submitted a claim of unfair dismissal against the respondent on 12th of March 2025.

The complainant was employed as a Sales Assistant in the respondents shop since the 6th of July 2018 until his dismissal on 6th of December 2024.

The respondent denies that the dismissal was unfair citing gross misconduct as the reason for the complainant’s dismissal.

The complainant submits that he was employed by the respondent from 6th of July 2018 until his dismissal on 6th of December 2024.

He submits that during his employment he had encountered Long-standing disagreements with colleague which he says were poorly handled by HR .  The complainant submits that no disciplinary action resulted from these disputes.

The complainant submits that  management appeared to want him to leave, making work increasingly difficult for him.

 The complainant submits that In October 2024 he became ill and was hospitalized for a month.

Upon returning, he was called to a “welfare check” meeting with the manager and owner.

The complainant submits that the respondent used his  health as a reason to offer a financial settlement for him to leave.   

The complainant submits that he refused the offer and requested written confirmation that the offer was based on health, not performance but no response was given.

At a later meeting, the complainant submitted that he was under stress but stated that that his stress level was unrelated to the job and would be the same in another job such as taxi driver or builder.

The complainant submits that the next day, he received a letter twisting his words and alleging that he himself had indicated that he wanted a career change citing options  like taxi driver, chef, security guard and offering him €5,000 to leave which he  refused again.

The complainant submits that management then created a list of alleged company procedure breaches, seemingly to build a case for dismissal. These were minor issues and commonly ignored by other staff.

 The complainant submits that on 6 December  2024 he texted his manager stating that he would be a few hours late  and the manager replied telling him not to come in and that he would arrange cover.

The complainant submits that he then decided to go into work and that he then went in and  began working but was told by his Manager to go home.

The complainant refused  to go home, and the owner of the business later arrived and told him to go home.   The complainant submits that the  owner confronted him and announced that he was suspending him with pay but gave no reason for this..

The complainant submits that the respondent  later  called the Garda, claiming that the complainant  was  aggressive and refusing to leave. 

The complainant submits that the owner then told him that he was dismissed.   

The respondent submits that the complainant was employed by them from 6th of July 2018 until his dismissal on 6th of December 2024.

He worked on the trade counter dealing directly with customers.

The respondent submits that the complainant exhibited persistent issues with timekeeping, attendance, adherence to company procedures, and inappropriate workplace behaviour.

Despite repeated interventions, verbal warnings, and a written warning issued on 4 December 2024, the complainant failed to demonstrate improvement.

The respondent submits that the final incident occurred on 6 December 2024 when the complainant, after notifying his manager that he would be a few hours late for work due to a family emergency, ignored instructions not to attend work as cover had been arranged.

The respondent submits that the complainant in his text advised that he would be in about 11 o clock which is 3.5 hours after shop opening time.  The respondent submits that the complainant had a history of coming in late and of unauthorised absences from the business during the working day matters which had been raised with him on a number of occasions.

The respondent submits that  the morning is the busiest time in the shop and so it replied to the complainant stating that they would arrange cover and so he did not need to come in.   The respondent then confirmed to the complainant that cover had been arranged and he did not need to come in.

The respondent submits that the complainant contrary to his earlier message later arrived  at the premises despite being told that cover was in place and he should not come in.

The respondent submit s that the complainant refused multiple directives from his manager and later from the business owner to leave the premises following which he was suspended on full pay.

The respondent submits that the complainants conduct then escalated to verbal aggression, intimidatory behaviour, and refusal to comply even after Gardaí intervention.    

The respondent submits that to ensure safety, the business was forced to close temporarily and send all customers home due to the complainant’s behaviour.

The respondent submits that the complainant was treated fairly and given numerous opportunities to improve.

The respondent submit that the events of 6 December constituted gross misconduct, irreparably damaging the employer-employee relationship for which dismissal was the only viable option after all reasonable measures failed.   

The respondent submits that an appeal process was offered but not pursued by the complainant.

The company asserts that its actions were consistent with policy and necessary to protect staff, customers, and business operations.

The Unfair Dismissal Acts, 1977-2015 (“the Acts”) defines “dismissal” in relation to an employee as including the termination by the employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

Section 6(1) of the Acts provides:

“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) of the Acts provides:

“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(7) of the Acts provides:

“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

(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 [the procedure which the employer will observe before and for the purpose of dismissing the employee] or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act”.

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair. 

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is helpfully set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

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

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be judged against. 

On the substantive fairness, the respondent company need only show that it’s decision to dismiss fell within the band of reasonableness, given the circumstances. 

 The respondent advised the hearing that the complainant had been dismissed following an incident on the 6th of December 2024 where he had ignored a direct instruction not to attend work and arrived at the premises and refused to leave in spite of numerous instructions from his manager and thereafter from the owner of the company.   The respondent advised the hearing that the incident resulted in the respondent having to call the guards to the premises following which the complainant persisted in his refusal not to leave the premises.

The respondent advised the hearing that it had stopped short of agreeing to the Gardai arresting the complainant for his behaviour as they did not want to cause him such a level of embarrassment and so when the guards stated that the only option was to arrest the complainant or leave him be the respondent stated that they did not want him arrested.

The respondent at the hearing outlined  the background to these matters and stated that there had been  a series of incidents and disciplinary matters involving the complainant due to his behaviour and his timekeeping.

The respondent by way of background advised the hearing that the  complainant worked at the  trade counter in the respondent shop primarily serving the building trade.   The respondent stated that the  complainant worked 5 out of 6 days weekly, with a start time of 7:30 a.m. which he very often did not adhere to..  

The respondent stated that there were also issues around the complainant’s use of inappropriate nicknames against other staff and ‘banter’ used by him  which had necessitated  HR intervention  warning the complainant that such behaviour was unacceptable.

The respondent advised the hearing that there was an incident in May  wherein the complainant was found to have breached the company policy on staff purchases by using a  colleague’s PIN, and  disguising a large transaction made by a relative of the complainants.  The respondent stated that following this the complainant was issued with a verbal warning.

The respondent advised the hearing that there was a further incident in 2024 in which a customer had returned to the shop complaining about an invoice which the complainant had failed to complete correctly.  

The respondent advised the hearing that the shop is at its busiest in the mornings, making punctuality critical but stated that the complainant had repeatedly breached the punctuality requirement.  The respondent stated that the complainant had been given warnings in respect of his timekeeping in this regard and that the matter of his ongoing lateness and absences had been discussed with the complainant in August 2024, but no formal action was taken at the time.

The respondent advised the hearing that in the period September–November they continued to have issues with the complainant failing to follow procedures with his  timekeeping, and inappropriate comments and the complainant was issued with a written warning on 4 December 2024 for failing to follow invoicing procedures.

The respondent advised the hearing that they had addressed disciplinary matters  with the complainant  a number of times and at one stage he stated that he would not be attending any further disciplinary meetings stating that he ‘does not do stress’.  

The respondent advised the hearing that it was against this backdrop that the 6th of December incident took place.

The respondent advised the hearing that the complainant had texted his manager on the morning of 6th of December  stating that he would be a few hours late due to a family emergency.

The respondent advised the hearing that the manager Mr. L replied stating that he would arrange cover and that the complainant did not need to come in but could attend to the family emergency. 

Following this the Manager Mr. L arranged cover with another staff member and instructed the complainant that he had done so and that the complainant did not have to attend that day.

The complainant later messaged again stating that and that he would be coming into  work around 11.   Mr. L replied again advising the complainant that cover had been arranged and that he was not to come in.

The respondent stated that the complainant upon being notified that cover had been arranged then sent another text saying he would be there in 10 minutes to which the manager replied again telling him not to attend as they had already arranged cover.

The respondent advised the hearing that the complainant ignored the managers instructions,  arrived late, and refused to leave the premises despite repeated requests from the manager Mr. L.  

Witness for the respondent Mr. L advised the hearing that he had contacted the owner of the business Mr. G and advised him of the situation and Mr. G who had been at another location had then travelled to the shop in order to assist Mr. L. in dealing with matters

Mr. L advised the hearing that the complainant had come into work and assumed his role even though there was no place for him as cover had already been brought in.  Mr. L stated that the complainant went to the counter and started serving customers ignoring Mr. L when he had called him away and asked him to refrain from serving customers.  Mr. L stated that they had called him into the back office and told him to go home but the complainant refused to do so. 

Witness for the respondent and business owner Mr G stated that he arrived at the premises to assist Mr. L in dealing with matter and stated that he had called the complainant into the office and had asked him to go home as cover had been arranged.  Mr. G stated that the complainant refused to eave and became verbally aggressive and intimidatory; at one point lunged towards Mr. L.

Mr. G advised the hearing  that he had told the complainant  that he was suspending him with pay commencing immediately but the  complainant still refused to leave and continued to walk in and out and argued about the matter  in front of customers.   Mr G stated that  they had no security available at the time  and so he  phoned the Gardaí.   Mr. G  advised the hearing that the Gardai arrived and asked the complainant to leave which he refused to do.

The respondent stated that the Gardai then advised Mr. G r that the only option for them would be to arrest the complainant but  Mr. G advised the hearing that he did not agree to this as he did not want to go so far as to have the complainant arrested and so he refused this option. 

The respondent advised the hearing that the complainant had been asked to leave a number of times but that he insisted on staying at the Trade counter and trying to serve customers even though he was being instructed to go home. 

The respondent stated that he was being aggressive to other staff and to the manager in front of  customers and that even after the Gardai arrived the complainant still refuse to leave the premises.   The respondent advised the hearing that all of this was happening in full view of the respondent’s customers. 

The respondent Mr. G advised the hearing that he was left with no option but to dismiss the complainant there and then and stated that even after dismissing him and instructing him to leave the premises the complainant continued to refuse to leave.   The respondent advised the hearing that in order to get the complainant to leave the building even after being dismissed he took the drastic step of having to shut down the business and send all of the customers away.  The respondent advised the hearing that they had evacuated the premises on the guise of a gas leak as that was the only way to get the complainant to leave the premises.

The respondent advised the hearing that during all of this he had first asked the complainant to go home as he was not needed then after the complainant refused he advised  the complainant that he was being suspended with pay pending an investigation into the matter following which the complainant still refused to leave and the complainant continued to refuse to leave even after the Gardai were called and asked him to leave and so eventually Mr. G  dismissed the complainant there and then as he would not obey instructions to leave the premises.     The respondent state that they had to take the extreme action of evacuating the building in order to get the complainant to leave the premises.

The complainant at the hearing did not dispute that  he had shown up for work on the day in question after texting  the respondent to say that he would be a few hours late as he had been up all night and had to bring his sister to hospital.  

The complainant stated that the respondent had replied telling him that he did not have to come in at all and that they would sort cover for the day.

The complainant advised the hearing that he had later notified the respondent that he would be in around 11.

The complainant stated that the respondent had replied telling him that he did not have to come in at all as cover had been sorted for the day.

The complainant advised the hearing that this was unusual and that he felt that the respondent had been trying to get rid of him and so he had then decided to abandon his responsibility to his sister and mother and leave them in order to go into work and so he texted Mr. L  to say he would be in work in 10 minutes to which Mr. L replied again that he had arranged cover and did not need to come in.

The complainant advised the hearing that he had felt that the respondent had been trying to get rid of him or trying to find a reason to get rid of him for some time as they had pulled him up in relation to matters which normally would not be an issue.

The complainant in addressing the claims regarding his punctuality confirmed that he had been spoken to about his timekeeping.   The complainant also agreed that he had been spoken to about his name calling in the workplace.

The complainant advised the hearing that he had also been reprimanded about the incident where he had a transaction of €2,000 for a relative and had put this through the system using a colleague’s pin and id details not his own.   The complainant stated that he had at the time mentioned this to the manager who had said they would sort it out later.  The respondent in reply stated that they had said they would deal with the matter later as he had mentioned it at a busy time on the shop floor.

The complainant also acknowledged that there was an incident where a customer had come back and complained about an invoice he had completed incorrectly and he stated that this was just a mistake on his part.

The complainant at the hearing conceded that the respondent had been spoken to about a number of disciplinary issues but stated that no formal action was taken in this regard.

The complainant also advised the hearing that he had been out sick for a month October and when he returned to work he was called to attend a return-to-work meeting which he did not see as necessary.  The complainant stated that at that meeting he had advised the respondent that he was stressed at work, but he stated that he had clarified that he would feel the same stress in any other job whether he was driving a taxi or working as a Chef.

The complainant stated that following this meeting the respondent had offered him a sum of €5000 as a goodwill payment and in the accompanying letter the respondent referred to the back to work meeting and stated  that the complainant had indicated in the meeting that he would like a career change and had cited an interest in driving a taxi or working as a Chef.

 The complainant advised the hearing that this was not the intent of the conversation from his point of view and not the point he had been making when referring to other jobs.   The complainant advised the hearing that it was clear from this letter and the accompanying offer that the respondent was trying to get rid of him.

Having considered the evidence adduced and both viewpoints in respect of the conversation which took place at the back to work meeting  it does appear that the respondent may have misconstrued the point being made by the complainant in the meeting and that the respondents understanding of this conversation was that the complainant was stating that he wanted to work in a different job which would be less stressful.

I am satisfied from the evidence adduced that this was an honest mistake or misconstruction of the conversation on the part of the respondent and I am satisfied from the complainant’s reaction in refusing the offer that this was not the outcome he was seeking in having that conversation.

Therefore, I am satisfied that the offer from the respondent was based on a misconstruction of the conversation or miscommunication and does not support an assertion that the respondent was trying to get rid of the complainant at that stage.

The complainant in his evidence to the hearing was somewhat inconsistent initially stating that he accepted that he had been spoken to about his time keeping and about his name calling and acknowledging that he had received disciplinary warning s in 2023 and again in 2024 but tater stating that he only remembered 2024 warning and not the earlier one.

The complainant was asked whether he had appealed the warning and replied that there was no point in appealing.

The respondent advised the hearing that the complainant was dismissed for gross misconduct on the 6th of December due to his behaviour on that day.  The respondent stated that this was its final attempt to get the complainant to leave the premises on the day on question as all other attempts had failed.  The respondent stated that even after dismissing him the complainant refused to leave the building until they took the drastic step of evacuating everyone from the building.   The respondent advised the hearing that had later written to the complainant offering him the opportunity to appeal the decision to dismiss but he had not appealed the decision.

The complainant in defence of his actions on the 6th of December stated that he refused to leave as he was given nothing in writing on the day to indicate or justify why he was being suspended and thereafter dismissed and so he was given no reason why he should go home.

The complainant advised the hearing that he had not appealed the dismissal as there was no point.

In considering this matter I am cognisant of the fact that the complainant was given a number of opportunities to leave on the day in question without any sanction, but he refused to do so.  I also note that even after matters escalated to suspension with pay he still refused to leave and again after the Gardai were called he refused to leave.  I note that the complainant continued to remain on the premises even after he was dismissed and told to go home and that he did not leave until the respondent took the drastic step of evacuating the building.

The respondent submits that the complainant’s behaviour on that day by repeatedly refusing to follow an instruction from his manager and then by the owner of the business resulted in a complete and irreparable breakdown of the employment relationship and constitutes gross misconduct warranting summary dismissal.

Having examined and reflected on the evidence from both sides, I am satisfied, as a matter of probability, that the events of the 6th of December and the complainant’s behaviour on that date was in fact the reason for his dismissal

I am also satisfied that  the sanction of dismissal comes within the band of reasonable responses of an employer and was proportionate, having regard to all of the circumstances in this case.

In considering the procedures followed I note that this was an unusual situation and that even in such circumstances the respondent initially sought to suspend the complainant with pay pending an investigation but that the complainant continued refusal to leave the premises and obey an instruction from both the manager and then the owner of the business resulted in his dismissal there and then.   I note that even the presence of the Gardai was not enough to influence the complainant to leave the premises and that the respondent had to take the extreme measure of evacuation the premises and closing the business resulting causing inconvenience to staff and customers as well as financial loss to the business.  I al note that even after all of this the complainant was offered an appeal of his dismissal l in order that he could present any mitigating circumstances but that he refused to avail of this.  

In considering the procedural aspects In note that the respondent The company followed fair procedures in as much as same was possible given the unusual and extreme circumstances and even offered the complainant suspension on full pay before  termination and after the dismissal offered the complainant an opportunity to appeal which he did not avail of..

Accordingly, I am satisfied the complainant was not unfairly dismissed and I declare this claim to be not well founded. 

Accordingly, I am satisfied the complainant was not unfairly dismissed and I declare this claim to be not well founded.