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WRC Finding of Unfair Dismissal –  Employer Unable to Demonstrate that Fair Procedures were Followed

Kenneth Malone v Cerlock Ltd ADJ-00041931 concerned three complaints to the Workplace Relations Commission (the “WRC”) under the Unfair Dismissals Acts 1977-2015, the Organisation of Working Time Act 1997, and the Terms of Employment (Information) Acts 1994-2014. The Complainant alleged that he was unfairly dismissed, that he had never been provided with a written statement of his terms of employment, and that he did not receive proper breaks.

Facts: The Complainant was employed by the Respondent as a barman for seven years. The Complainant described being approached on 18th July 2022 by Ms. Lee-Anne Graham, the owner of the Respondent, who implied that he was “on the drink”. He told the WRC that she informed him that she had video footage of him carrying empty cans out of a cold store and then terminated his employment and asked him to leave the premises.

However, the Respondent argued that the Complainant’s employment was not terminated on 18th July, but that the Complainant was merely suspended pending a disciplinary meeting. The Complainant stated that he was notified of the disciplinary meeting by text, sought legal advice and was told not to attend the meeting on the basis that his employment had already been terminated.

According to the Respondent, after the Complainant did not attend the “disciplinary” meeting, the Respondent issued a dismissal letter on 28th July, terminating his employment due to gross misconduct. The Complainant denied ever seeing this dismissal letter. The dismissal letter also stated that the Complainant was prohibited from going onto the Respondent’s premises because of threatening and criminal behaviour which the Gardai were investigating.

Ms. Graham gave evidence that she had given a verbal warning and a final written warning to the Complainant for other issues prior to his dismissal, including the need to improve his performance and attend for work. The Complainant denied ever having received the final written warning.

The Respondent submitted that the Complainant had admitted he had an alcohol issue and that Ms. Graham had contacted his brother as she was concerned for his wellbeing. Ms. Graham gave evidence at the hearing that she had received some complaints from customers that the Complainant had been drinking at work, so she reviewed the CCTV footage. She was satisfied that the complaints were merited.

It was the Respondent’s case that the Complainant was aware of the company’s disciplinary and dismissal procedures and that the Respondent had adhered to these procedures during the investigation and disciplinary process.

The WRC Adjudicator, Peter O’Brien, stated that an Adjudicator has an investigative role to try to establish facts in an employment law case and requested that the videos be sent to him and the Complainant’s representative for viewing. The Complainant’s representative objected to the videos being seen by the Adjudicator as they were not shown to the Complainant at any time up to his dismissal and were not produced at the hearing. The Complainant’s representative also raised concerns about the accuracy of the dates and times shown. However, the Adjudicator confirmed it was essential for him to view the videos in order to evaluate the allegation of gross misconduct.

Decision: The Adjudicator found that the Complainant’s dismissal was substantively and procedurally unfair. The Adjudicator considered a number of decisions in reaching his decision, including the Looney v Looney case (UD83/1984), where the Employment Appeals Tribunal referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

The Adjudicator noted that the CCTV footage showed the Complainant drinking at the bar counter on very few occasions and that this mainly occurred around closing time with very few or just one customer in the bar. He also found that the video showing the Complainant coming out of the cold store with a can in his hand was not conclusive that he had been drinking in the store and the Complainant denied that he had been. The Adjudicator concluded that “overall, the videos can’t be relied upon to support the Respondents version of events.”

The Adjudicator was very critical of the fact that the videos were never shown to the Complainant, and he was given no opportunity to give his version of events.

In relation to the other grounds for dismissal contained in the dismissal letter, the Adjudicator noted that there seemed to be no mention of these prior to the scheduled disciplinary meeting and that there was an obligation on the Respondent to prove these allegations prior to dismissal. They were denied by the Complainant and he told the WRC that he had never been contacted by the Gardai in relation to any of the issues. In relation to the final written warning which the Respondent claimed had previously been issued to the Complainant, the Adjudicator noted that only an unsigned version was produced at the hearing and found that it was the Respondent’s duty to maintain signed records and have them available to support their case. He was not prepared to accept a contested unsigned version as evidence.

Furthermore, the Adjudicator noted that while the Respondent claimed that the Complainant was invited to a disciplinary meeting, no evidence of the invitation was presented at the WRC hearing. The Adjudicator found that the “disciplinary” meeting set up by the Respondent was

“a convenient rethinking by the Respondent to try satisfy proper procedure.  There was no notice that dismissal was a consideration in a letter presented to the Hearing. There was no letter presented giving the Complainant the right of representation at the proposed disciplinary meeting.  There was no right of appeal mentioned in the dismissal letter.”

In fact, the Adjudicator referred to the process followed by the Respondent as “a catalogue of all the things you should not do to support a claim that someone was dismissed fairly”.

The Adjudicator concluded as follows:

“My overall conclusion is that the Respondent has not proven that the Complainant was drinking in the storeroom/off licence as alleged and that while he can be seen to have a drink or two at the bar counter the CCTV footage is not 100% reliable that this was gross misconduct and not ‘one for the bartender’ at the end of a shift. The failure to show him the videos which the Respondent relied upon to dismiss the Complainant is critical in this case. Having considered all the evidence and submissions my finding is the Complainant was unfairly dismissed both on substantive and procedural grounds.”

The Complainant’s alleged loss of €12,000 was reduced by 25%  as the efforts made by the Complainant to mitigate his loss were in question. The Complainant was therefore awarded compensation in the amount of €9,000 for his unfair dismissal.

Separately the Adjudicator held that the complaint under the Terms of Employment (Information) Act 1994 must fail as the complaint was lodged outside the statutory time frame of six months. The Adjudicator also held that the complaint under the Organisation of Working Time Act 1997 was not well founded, as no real evidence was provided that the Complainant did not receive his proper entitlement to breaks. The Adjudicator acknowledged the Respondent’s responsibility to keep records and demonstrate compliance with the Act, the Adjudicator found that because the Complainant was running the bar and doing the rosters, there was an obligation on him also to ensure compliance with the legislation.

Takeaway for Employers: This decision highlights the importance of ensuring that accurate records are kept and that employers carefully document the steps taken in any disciplinary process. Employers should bear in mind that they may be required to produce signed copies of relevant correspondence and documentation in potential WRC proceedings. Employers need to remember that the burden of proof in an unfair dismissal case is on the employer to demonstrate that the dismissal was substantively and procedurally fair. In this case, producing unsigned versions of correspondence/documents was not considered adequate by the Adjudicator, particularly as the facts were in dispute.

This case also highlights the importance of ensuring that an employee is provided with the evidence against him/her and is given an opportunity to respond to the allegations during a disciplinary process.

The decision in relation to the Terms of Employment (Information) Act 1994 is curious as the complaint appears to have been lodged within six months from the termination of the Complainant’s employment.


Authors – Tara Kelly, Jenny Wakely and Anne O’Connell

30th September 2023

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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