+353 (0) 1 211 8434 - info@aocsolicitors.ie -

- News

- News

Employer Justified in Increasing Sanction from Final Written Warning to Summary Dismissal on Appeal

In Martin Browne v Egis Road and Tunnel Operation Ireland Limited ADJ-00019705 the Complainant was issued with a Final Written Warning and a two-week unpaid suspension from work. He was informed of his right of appeal and notified that an appeal could result in the disciplinary sanction being upheld, removed, reduced or increased. The Appeals Manager decided that the initial sanction was not appropriate and increased the sanction to summary dismissal for Gross Misconduct.

Facts: The Complainant was employed as a Duty Manager in the Tunnel Control Room at the Dublin Port Tunnel. He was responsible for overseeing the Tunnel Control Room which monitors the maintenance, safety and security of the tunnel, and for managing the Tunnel Patrollers. The Tunnel Patrollers are responsible for responding to any incidents or accidents that occur in the tunnel.

On 10th January 2018, a patroller “AB” was on patrol and the Complainant was the Duty Manager on duty in the Tunnel Control Room. During the shift that evening, the Toll Supervisor informed all present in the Tunnel Control Room that he was going to play a prank on AB. The “prank” involved calling AB on the radio and informing him that there was a serious accident in the tunnel. AB responded by driving at speed in his emergency vehicle, with warning lights, to the area where he was informed that the accident had taken place. The prank took place during rush hour traffic and the Respondent noted that AB would have had to drive at high speed and weave in and out of lanes of traffic, with an increased risk for a real accident. When AB sought clarification regarding the location of the “accident”, he was told that it was a prank. AB responded by stating over the radio “don’t pull that shit on me!” Only at this stage did the Complainant become involved, not by addressing the inappropriateness of the prank, but by pulling AB up on his radio etiquette.

The Respondent carried out a disciplinary investigation. The Complainant accepted that he had been in the Tunnel Control Room at the time of the prank, but claimed that he had not been aware of the prank because he was feeling unwell and had just returned from sick leave. The Investigator made certain findings of fact on foot of his investigation, including that the Complainant appeared to be engaged in the incident, but did not intervene.

The matter was referred to a disciplinary stage and the Complainant maintained that he was not feeling well at the time and had not been aware of the prank. The Disciplinary Manager found that the Complainant was aware of the prank and did not intervene to stop it, thereby losing control of the Control Room. He took into consideration the Complainant’s claim that he had not been feeling well in mitigation, and issued him with a Final Written Warning and a two-week unpaid suspension from work.

The Complainant appealed the outcome of the disciplinary hearing. The Appeals Manager considered his alleged illness, noting that no independent medical evidence had been provided and that on his return to work from a period of sick leave not long before the incident, he had confirmed on his return-to-work form that he was not suffering from any symptom or ailment that the Respondent should be aware of. The Appeals Manager looked at the issue of proportionality and found that a Final Written Warning was not the appropriate sanction in all the circumstances. The Complainant was summarily dismissed for Gross Misconduct.

Decision: The Adjudicator noted that her role was not to establish the guilt or innocence of the Complainant, “but rather to decide if the Respondent acted reasonably in the circumstances”, referring to established case law on this point. She noted that the Respondent bore the burden of proof to establish that the dismissal was not unfair.

The Adjudicator considered the procedure adopted by the Respondent in this case. She pointed out the very high bar required particularly in cases involving dismissal for Gross Misconduct. The Adjudicator found that although there may have been some procedural flaws in the investigation of the allegations, “the Respondent conducted a staged process which overall, was fair and reasonable throughout.”

The Adjudicator then proceeded to consider whether the decision to dismiss the Complainant was reasonable and proportionate in light of the Complainant’s conduct. She referred to a number of cases, including Noritake (Ireland) Limited v Kenna UD 88/1983, which she referred to as authority for the “general approach” of tribunals to cases involving dismissal for conduct:

“1. Did the company believer [sic] that the employee misconducted himself as alleged?

2. If so, did the company have reasonable grounds to sustain that belief?

3. If so, was the penalty of dismissal proportionate to the alleged misconduct?”

She also referred to Bank of Ireland v Reilly [2015] IEHC 241 where Noonan J. stated as follows:

“In assessing the reasonableness of the employer’s conduct in relation to dismissal herein, it seems to me that such an assessment must have regards to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.”

The Adjudicator referred to the Disciplinary Appeal Outcome letter which stated that the Complainant had lost control of the tunnel and allowed a junior employee to take control for 93 seconds. The Appeals Manager outlined that he:

“would view this incident as being the most serious incident to date in terms of its severity and the potential for injury or loss of life. The reputation of the Dublin Tunnel itself was also in jeopardy. While taking into account the mitigating circumstances associated with the fact that you state you were feeling unwell on the evening in question, I find that your behaviour is an instance of gross misconduct to the point that, through your actions and deliberate inactions, you willingly allowed the endangerment of staff and members of the public using the tunnel…Due to the severity of your conduct, the necessary trust and confidence required as your employer, has been irreparably damaged.”

The Adjudicator found that the incident that took place on 10th January 2018 was more than a mere “prank”, noting that it could have resulted in injury and even loss of life to employees of the Respondent and other road users. She found that:

“[t]he very essence of the Complainant’s position as Duty Manager is to safeguard the health and safety of all tunnel users. Through his actions in not stopping the Tunnel Controller from carrying out the so called ‘prank’, the Complainant failed to fulfil the key duties of his role.”

In referring to the Complainant’s assertion that he was not aware of the actions of the Toll Supervisor, the Adjudicator stated as follows:

“Frankly, I am at a loss to understand how the Complainant heard the victim of the prank use the word ‘shit’ but did not hear the Toll Supervisor use incident critical phrases including ‘multi-vehicle collision’, ‘debris’ and ‘take evasive action’.”

She agreed with the Appeals Manager that, on the balance of probabilities, the Complainant “heard the entire incident and did not take any action to stop it.”

The Adjudicator referred to the essential requirements of trust and confidence in an employment relationship, noting that:

“There is an implied term in every contract of employment that requires both employers and employees to refrain from behaving in such a way as to destroy the relationship of trust and confidence. As a consequence of the Complainant’s action, or inaction, the Respondent had every entitlement to lose confidence and trust in him. I am of the view that any employer faced with the same circumstances to those that pertained in this case would have acted in the same way. I, therefore, find that the conclusion reached by the Respondent in relation to the conduct of the Complainant was reasonable in all of these circumstances.”

She found that the Complainant’s dismissal was fair and held that the complaint was not well founded.

Takeaway for Employers: There is a very high bar for employers seeking to demonstrate that a summary dismissal was fair, both substantively and procedurally. This case is unusual in that the decision to dismiss the Complainant was only made on appeal. While disciplinary procedures frequently make provision for the possibility of an increased sanction on appeal, in practice this rarely occurs.

This case provides an example of the types of circumstances in which an employer may be able to establish that the summary dismissal of an employee was fair. The Workplace Relations Commission (“WRC”) will take into consideration the seriousness of the employee’s conduct and the impact or potential impact of that conduct on the employer, as well as the extent to which trust and confidence has been damaged/destroyed. Fair procedures are essential, but minor procedural flaws will not necessarily be fatal to an employer provided that the overall process was fair and reasonable. However, employers should note that the bar remains very high.

Link – https://www.workplacerelations.ie/en/cases/2022/october/adj-00019705.html  

Authors – Jenny Wakely and Anne O’Connell

28th October 2022

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


If you found this article useful you might like our employment law newsletter. We write monthly articles, like this, covering interesting cases, decisions, news and developments in Ireland.

Related Articles