In Gerard Carey v DAA plc Dublin Airport Authority (ADJ-00048839), the Workplace Relations Commission (the “WRC”) found that a senior executive at Dublin Airport Authority who was arrested for theft, was not unfairly dismissed by his employer. The Adjudicator, Michael McEntee, found that the Complainant’s claim under section 8 of the Unfair Dismissals Act, 1977 was not successfully made out as the relationship of trust and confidence had irreparably broken down and an extensive and fair process had taken place.
Facts: The Complainant had a long history of employment with the Respondent, having begun employment in March 1998, and having been promoted to his final position in 2008. The Complainant admitted that he has been arrested by the Gardaí for alleged theft from an airport retailer on 29th June 2023. He claimed that he was then subjected to a lengthy and unfair, prejudicial investigation, disciplinary, and appeal hearings by the Respondent. He also claimed that insufficient regard was had for his mental health and personal circumstances by the Respondent and that the Respondent had ignored the medical evidence he provided.
The Complainant referred to the decision of Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 in which Flood J. held that dismissal must be proportionate to any wrongdoing. The Complainant claimed that the decision to dismiss him, given his lengthy service and previous unblemished record, was disproportionate. He claimed that the Respondent did not take into account the “overwhelming mitigating circumstances”.
The Respondent’s position was that the breach of trust by the Complainant was a key issue in this case, in particular in an airport setting where security and trust in employees is paramount.
Evidence was heard from the disciplinary manager, Mr D, who was of the view that the Respondent simply could no longer trust the Complainant in the Safety/Regulatory area of the organisation. When asked if any alternative, or less senior roles for the Complainant were considered, the witness answered that there were no suitable alternative roles available. One vacancy at the time was a role of Car Park Attendant, which would be wholly unsuitable for the Complainant given his senior executive role and tenure of employment with the Respondent. Mr D said that it was not an easy decision to dismiss a senior employee of long service, but that there were no realistic alternatives.
The appeals manager, Ms M, also gave evidence in respect of the Complainant’s significant safety and regulatory role and the fundamental requirement for trust and confidence. She told the WRC that the relevant medical evidence had been carefully considered, but did not outweigh the decision to dismiss.
Decision: The Adjudicator found that the decision to dismiss in this case was procedurally fair. A full and fair investigation and disciplinary process took place. An independent appeals process was also held and he was satisfied that the appeals manager was sufficiently independent. The Adjudicator noted that it is not the role of a court or tribunal to substitute itself for an employer. Although the Complainant was not criminally convicted of theft in this case, the Adjudicator accepted the Respondent’s position that the relationship of trust and confidence had broken down. The Adjudicator found that the decision to dismiss the Complainant was “well considered”, based on the Respondent’s particular experience and expertise regarding Aviation and Safety in an airport.
Takeaway for Employers: This case is an example of an employer following what the Adjudicator regarded as a fair process in which the rules of natural justice were observed throughout. While dismissal for gross misconduct will often not be an appropriate or proportionate sanction, in this case the overwhelming factor was the Aviation Safety and Regulatory Environment in circumstances where the Complainant had a senior position with unimpeded access to aircraft. In those circumstances, trust and confidence in the employer-employee relationship was absolutely crucial and the Adjudicator was satisfied that only the Respondent had the expertise and experience to evaluate the required trust and safety confidence requirements in that environment. He accepted that trust and confidence had broken down and that the decision to dismiss the Complainant for gross misconduct was in this case fair.
Employers should ensure that they exercise caution before summarily dismissing an employee for gross misconduct. Not only must an employer be satisfied that the decision is substantively fair and proportionate, but they must also ensure that they adhere rigorously to fair procedures throughout the investigation, disciplinary and appeals process.
Link – https://www.workplacerelations.ie/en/cases/2025/january/adj-00048839.html
Authors – Jane Holian, Jenny Wakely
4th March 2025
Anne O’Connell Solicitors
19-22 Baggot Street Lower
Dublin 2
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