The Workplace Relations Commission (WRC) upheld a decision made by Dunnes Stores to dismiss an employee for gross misconduct after he was charged with a criminal offence. The WRC found that the decision was within the range of reasonable responses and was justified on substantial grounds.

What happened?

Mr McVeigh worked as a General Assistant engaged in night packing duties since June 2007.  In July 2021, on his way to work, Mr McVeigh was arrested outside his workplace for an alleged offence in a city centre supermarket contrary to the Sexual Offences Act. This alleged offence was said to have occurred outside the workplace. Upon his return to work, Mr McVeigh confirmed to his employer that he had been arrested. Mr McVeigh was informed that he was suspended with pay. At a meeting with the store manager, Mr McVeigh again confirmed that he had been arrested but would not provide any further details, on the advice of his solicitor. The store manager produced a newspaper article which named Mr McVeigh and advised that he would have to consider how the matter might impact the company, taking into consideration his colleagues and the customers. At this meeting Mr McVeigh's suspension was confirmed. At a second meeting, Mr McVeigh was informed by the store manager that this was an investigation. Mr McVeigh was again invited to provide further information but refused. Following this meeting, Mr McVeigh sent a letter enquiring the reasons for his suspension and looking for information of the issues his colleagues had mentioned. The store manager replied, confirming his suspension pending investigation. He stated that there was a duty of care owed to staff, customers and visitor.

At the final meeting, Mr McVeigh was informed that his termination was being considered given the potential reputational damage to the company. The store manager confirmed at this meeting that a decision had been made to dismiss Mr McVeigh with immediate effect. Mr McVeigh's appeal of the decision was unsuccessful. The Code of Conduct in the Handbook stated employees were obliged "to maintain proper standards of integrity and conduct and concern and not to do anything which is likely to bring the Company’s reputation into disrepute, either during or outside the course of your employment”. Upon cross-examination of Mr McVeigh at the WRC hearing, he agreed that the alleged act would make the company look bad given that people in the community shop in the supermarket and they would also likely read the newspapers.

Mr McVeigh argued that the alleged conduct had occurred outside the workplace. In addition he contended that the investigation was flawed and contrary to his right to fair procedures, alleging:

1. He had not been told the nature and specifics of the meetings beforehand;
2. He had not been told that these meeting had the potential to lead to sanctions which may include dismissal;
3. He had not been aware of the seriousness of the matter;
4. He was denied the opportunity to have a trade union representative present at the meeting;
5. The store manager acted as both the investigator and decision maker.

Dunnes Stores argued that it could not be said that their response was outside the band of reasonableness. Dunnes Stores said that per Mooney v An Post [1998] 4 IRB 288, there was an obligation on the complainant to provide cooperation and in the present case, Mr McVeigh had refused to answer questions about the alleged incident. Dunnes Stores also stated that even if there had been procedural deficits, these deficits did not jeopardise his entitlement to a fair hearing.

What did the WRC decide?

The Adjudication Officer (AO) stated that given the seriousness of the allegations, it would have important implications for both parties to the dispute. The AO determined that the dismissal was within the range of reasonable responses and substantial grounds existed to justify the dismissal given:

1. Dunnes Stores had a policy to deal with such an eventuality.
2. Mr McVeigh would have been aware of the matter being investigated given that he was suspended at the time for a specific reason. The AO also drew attention to the fact that Mr McVeigh had been given many opportunities to explain what had happened.
3. The contention that Mr McVeigh did not understand the seriousness of matter until he received written notice was rejected.
4. Mr McVeigh could have obtained a trade union representative at any time.
5. There was no evidence that the investigator had acted in a way that could compromise a fair and impartial hearing.

Therefore the complaint was not well-founded.

Key takeaways

This case should not be seen as a free pass to dismiss employees for incidents which occur outside the workplace. These decisions will be fact-specific and it is important to engage legal advice when conducting internal disciplinary processes of this nature.

Full case here: https://www.workplacerelations.ie/en/cases/2022/august/adj-00036287.html