A Stale Chicken Wrap = Gross Misconduct? “No” Says EAT and Awards €50,889 for Unfair Dismissal

A supervisor with Gate Gourmet has been awarded €50,889 in an unfair dismissal claim. The worker had a blemish free record for 19 years and the Employment Appeals Tribunal decided that the sanction of dismissal was “a disproportionate sanction in all the circumstances”.

gross misconduct
Dismissed for “gross misconduct”

Gate Gourmet had a contract supplying airline food to various airlines. In 2012 they received a complaint that one of their customers had been supplied with an out of date and stale chicken wrap; in fact, the wrap was out of date in February, 2012 and the complaint received in April, 2012.

Gate Gourmet’s contract with this customer was to expire in July 2012 and this incident made it very difficult to ensure the contract was renewed.

This worker was found to have failed to follow standard operating procedure and was dismissed for gross misconduct on the grounds that the company took incidences such as this very seriously.

Two other employees also failed to notice the out of date wrap and received final written warnings. This different treatment from the sacked worker was something that was noted by the EAT.

The dismissed employee told the EAT that another worker actually took responsibility for not checking and recording the product, in accordance with procedures.

The EAT awarded him €45,000 for unfair dismissal and €5,889 in lieu of 8 weeks’ notice to which he would have been entitled.

Missing Jam Tarts Leads to “Fair and Proportionate” Dismissals Because of “Reasonable” Zero Tolerance Policy

This case was an appeal to the Employment Appeals Tribunal of a Rights Commissioner decision who had decided the two men involved, Boyne and Moran, were fairly dismissed.

jam tarts dismissal
Employer’s zero tolerance policy “reasonable”

The background to the case is the 2 men worked for Keelings Logistics Solutions who operated as a distribution company for the supply of goods to one customer. The 2 employees worked in the warehouse.

The security manager saw the 2 men “acting suspiciously” beside an open cage and saw the cage being moved. He also said he saw the men eating something and putting their hands inside the cage and stated the men had no business standing together in front of a cage.

The employer had a policy that no food would be consumed on the warehouse floor and installed vending machines on the shop floor to prevent staff tampering and/or eating stock.

The Warehouse Manager was alerted and it became clear that a box containing jam tarts had been tampered with and two individual tarts were missing from a packet.

An investigation was carried out and after a CCTV footage reviewed many times. The men said they were sharing a Mars bar and denied eating the jam tarts.
The employer carried out a disciplinary procedure and dismissed the men who appealed the decision but lost.

The EAT found that the men’s evidence was not credible and on the balance of probability that they did tamper with the stock.

The Tribunal also found that there were no procedural defects which would render the dismissal unfair. The investigation, disciplinary meetings and appeal were thorough, fair and objective.

The Tribunal decision also stated:

The Tribunal must assess where or not the sanction imposed was proportionate. The respondent stated that its function is to accept deliveries, process them and dispatch it to a third party stores. The third party is their only client and they are totally reliant on them for their business. There is a high level of trust between the respondent and the third party and that must be maintained at all times. If they tolerated staff tampering with stock the working relationship between them and the third party could be irretrievably damaged. That is why there is a zero tolerance policy. The respondent has placed vending machines on the shop floor to prevent staff tampering and/or eating stock. The Tribunal accepts that the respondent’s zero tolerance policy is reasonable in the circumstances. Any dismissal arising out of a breach of the policy is fair and proportionate.


What I find interesting about this case is that the EAT found that the employers zero tolerance policy in relation to staff tampering with stock was “reasonable in the circumstances”.

Many cases similar to this one has seen the EAT finding that the response of the employer was excessive and disproportionate.

But the fact that Keelings Logistics Solutions had only one customer and there was naturally a very high degree of trust required between them and their customer seems to have been critical in the EAT finding that the zero tolerance policy was reasonable.

Read the full decisions here and here.

Failure to Accommodate Employee’s Return to Work on Part Time Basis Costs Employer €40,000

This case concerned a man who worked in a quarry and suffered a brain tumour.

He brought a claim that he was discriminatorily dismissed from his job and the employer failed to provide reasonable accommodation for his return to work.


The man started working in the quarry in 2004. In 2009 he underwent surgery for a brain tumour and he made a full recovery. He was advised by his doctor that he would be fit to work for 20 hours per week.

The employer initially accepted this and accommodated him and gave him 5 four hour shifts with no driving of company vehicles. However within a couple of months the employer told him he would have to return to a 39 hour week or he would lose his job.

In January 2011 the employee was absent from work on sick leave as his doctor said he could only do 20 hours. The employer arranged an independent medical assessment in June 2011 and in August 2011 he was dismissed because the employer could not give him 20 hours per week only and the employee was not able to work 39 hours.

The employee appealed this decision but was unsuccessful.

He then brought a claim that he was discriminated against on the grounds of his disability-the brain tumour-and also that the employer failed, contrary to  S. 16 of the Employment Equality Acts to provide reasonable accommodation for his return to work.

Decision of the Equality Tribunal

Firstly, the Tribunal decided that the long term illness arising from the brain tumour was a “disability” within the terms of the Employment Equality Acts.

The employee pointed out to the employer that as he was only being paid for the 20 hours worked and overtime was cut, it was in the employer’s interest and was not costing the employer disproportionately.

He also offered to share the job with his son, also employed by the quarry, with his son doing the balance of the 39 hours.

The employee was 62 and only had 3 years to go to retirement and rang the employer regularly asking to be accommodated with the 20 hours work week. He said allowing him to do so did not place a disproportionate burden on the employer but the employer did not engage with him in a meaningful way.

The employer said that it needed the machine operated by the employee to operate in a full time capacity.

However it did not comment at the hearing on the offer of the man’s son sharing the job to ensure this happened.

The employer also referred to a department of Social Welfare scheme which allowed the employer to accommodate the employee in the first instance. However this scheme came to an end and it was then that the employer decided that it was 39 hours per week or dismissal.

The Tribunal found that regardless of any support provided by the Department of Social Welfare in these circumstances, the employer still had an obligation under the Employment Equality Acts to accommodate the employee.

The tribunal also found that permitting part-time work is one way in which reasonable accommodation can be provided and that the employer failed to provide reasonable accommodation to the employee within section 16 of the Employment Equality Acts and was entitled to succeed in this aspect of his claim.

His complaint of discriminatory dismissal was also upheld as the Tribunal found that his dismissal was directly related to his disability and to the employer’s failure to provide reasonable accommodation to him to return to work.

The Tribunal awarded him the maximum amount it could award in this case-€40,000- and noted that this was compensation, not pay, and was therefore not subject to tax.

Decision date:26th September, 2014

Read the full decision here.

Dunnes Stores Manager Sacked for Gross Misconduct Wins €16,630 for Unfair Dismissal

If you think that dismissing an employee for “gross misconduct” is easy, think again. This case involved a department manager with Dunnes Stores, Eleanor Preston, who set up a side business selling goods from a cash and carry to colleagues.


She admitted doctoring a letter from a community organisation group who packed bags in Dunnes in order to set up an account with a cash and carry in the name of the community group. The community group complained to Dunnes and on foot of this Dunnes suspended and then sacked (following a disciplinary hearing) Ms. Preston.


Dunnes argued at the Employment Appeals Tribunal hearing that they had lost the fundamental trust required in the employer/employee relationship. Ms. Preston explained that she was in financial difficulty when she ran her “enterprise”.


Ms. Preston had a good service record of 10 years with Dunnes and a clean disciplinary record. Dunes claimed that they took both of these into account in their decision to dismiss.


Ms. Preston appealed the decision to dismiss but the decision was upheld by a regional manager who said the essential element of trust was no longer possible.


The Employment Appeals Tribunal took a different view:

“As this was the claimant’s first offence, committed in a time of great personal difficulty which the respondent was aware of, the sanction of dismissal was disproportionate.”


Ms. Preston was awarded €14,000 in compensation for unfair dismissal and an additional €2,630 under the Minimum Notice and Terms of Employment Acts 1973 to 2005.



It can be very difficult to dismiss an employee for gross misconduct-you can learn more about unfair dismissal here.

Public Transport Employee Dismissed for “Gross Misconduct” Wins Reinstatement

A public transport employee who spat at a member of the public and was dismissed for “gross misconduct” has won her case to be reinstated in employment with the employer.

(Appellant: employee

Respondent: employer)

Member of the public annoying other passengers-appellant intervened-appellant was racially abused and spat at-she spat back at the passenger-all was recorded on CCTV-appellant admitted she was at fault in disciplinary process-employer dismissed her for “gross misconduct”-appellant brought case to Rights Commissioner-Rights Commissioner rejected her case-appealed to Employment Appeals Tribunal-appellant appealed the “too severe” penalty-pointed to her excellent prior record-EAT found that the dismissal was disproportionate-referred to section 6(1) of Unfair Dismissals act, 1977-”substantial” grounds are required to justify dismissal-EAT found that appellant’s conduct contributed to her dismissal-nevertheless appellant to be re-engaged back into the position she previously held and to take effect from 1st Jan. 2012-the period of absence from December 2010 to January 2012 to be counted for continuous service but not remuneration or leave entitlements.


Date of Hearing: 4th April, 2013

For Appellant: Rosemary Mallon B.L. instructed by B.P. O’Reilly Solicitors, Tallaght, Dublin 24

For Respondent: David Farrell, IBEC, Lower Baggott Street

Read full decision here

Montessori Teacher Awarded €32,500 for Unfair Dismissal in Kildare

Montessori school in Kildare-Board of Trustees runs the school-Principal asked RD to go on board-Principal went on administrative leave in 2010-Vice Principal took over Principal’s class-Board asked Vice Principal for report on each child-Principal unhappy with this report-felt Vice Principal was trying to undermine her position-report questioned Principal’s competence, professionalism, and commitment to school’s method-Principal alleged report was defamatory and offensive-wrote to the Board with her views-gave a copy of the letter to the Vice Principal and asked her to reflect on her report-Principal invited to disciplinary hearing-purpose of meeting to discuss Principal’s actions/behaviour towards Vice Principal-Principal had asked Board to remove Vice Principal from school-Board sought advice from HR consultant-at disciplinary hearing Principal clarified that she wanted Vice Principal removed from post of Vice Principal, not from teaching post in school-a performance improvement weekly plan was initiated for the Principal-Board decide that Principal’s action in handing a copy of her letter to the Board to the Vice Principal and asking Vice Principal to step down to be serious misconduct-Board decided termination of the Principal’s employment was justified-previous warnings on the Principal’s file were not considered-Principal was offered a right to appeal-Principal did not appeal-Principal’s case that she had suggested an independent facilitator to assist with the matter-gave the independent facilitator background information who contacted the Board-Principal suspended at this point for breach of data protection-Principal attended disciplinary hearing with her solicitor-felt her position was undermined by the Vice Principal’s report while Principal was on administrative leave-Principal saw no point in questioning Vice Principal at disciplinary hearing-Principal dismissed on 3rd March, 2011-following legal advice Principal did not appeal-no faith in appeals process-Tribunal found that procedures used by the Board were unsatisfactory-it would have been helpful if principal availed of appeal’s process-nevertheless Tribunal found that the Principal was unfairly dismissed and awarded 32,500 euros.

Date decision published: 18th June, 2013

Read the full decision here.

Unfair Selection for Redundancy-Awarded €50,000 for Unfair Dismissal

The Employment Appeals Tribunal (EAT) awards 50,000 euro for the unfair selection for redundancy of environmental manager.

Claimant worked her way up in Oxigen Environmental-was told her role would cease-notified of redundant-company had decided a week earlier that her role would cease-claimant said she was unfairly dismissed and sought reinstatement-alternatively, she claimed that she was unfairly selected for redundancy-respondent claimed her redundancy was part of a company restructuring-claimant informed of potential redundancy on 29th April, 2010-redundancy was confirmed on 26th May, 2010-came into effect on 26th June, 2010-no appeal from claimant-Tribunal found that claimant was not treated fairly or reasonably-selection criteria must be objectively applied in a fair manner-no hard and fast rules for criteria-criteria will come under scrutiny if employee claims unfairly selected-no agreed procedure for redundancy in this case-therefore employer must act fairly and reasonably-EAT held that there was no serious or worthwhile consultation with the claimant-decision to make the position redundant was made before consultation with claimant-no substantial consideration given to alternatives to redundancy-no worthwhile discussion in relation to the criteria for selecting the claimant-claimant’s suitability for other roles should have been considered-Tribunal found claimant was unfairly dismissed by virtue of her unfair selection for redundancy-awarded 50,000 euro for unfair dismissal in addition to redundancy payment of 10,014 already paid to the claimant under Redundancy Payments acts 1967-2007.

Decision published: 27th June, 2013

Read the full decision here

Unfair Selection of Warehouse Operative for Redundancy-Awarded Compensation of €8,000

A warehouse operative working in Waterford for kitchen seller is awarded €8,000 for ‘completely deficient procedures’ in implementing redundancy.

Respondent company sells kitchens throughout the country-claimant a warehouse operative in Waterford branch-poor sales in Waterford branch-claimant’s position selected for redundancy-company invited applications for voluntary redundancy or career break-claimant offered position in Limerick-declined for ‘family reasons’-claimant signed RP50 and accepted redundancy cheque-advised of right to appeal-General Manager claimed company policy re redundancy was adhered to-no need to compile a redundancy matrix as warehouse was closing fully-another employee retained to complete an order-no evidence of financial figures for Waterford branch-claimant received verbal warning for an error he made-claimant claimed that warehouse did not close immediately-employees still working there-he could have been trained for alternative positions-Tribunal accepted that company was suffering losses-however, procedures for dismissal were ‘completely deficient’-awarded €8,000 compensation under Unfair Dismissals Acts, 1977 to 2007-redundancy sum already paid to be offset against the €8,000.

Date of decision: 29th May, 2013

Read full decision here

Abrekbabra Supervisor Awarded €9,500 For Unfair Dismissal-‘Forgot to Pay’ for Food

An Abrekebabra supervisor, accused of consuming food on the premises without any record of the food having been purchased, wins €9,500 for unfair dismissal.

Supervisor since 2006-given a number of verbal warnings-CCTV footage showing him consuming food-no record of payment-supervisor claimed he ‘forgot to pay’-attempted to pay next day-breach of trust-one month’s notice and dismissed-no letter to claimant confirming dismissal-supervisor denied receiving verbal warnings-agreed received written warning-direct conflict of evidence between parties-‘lack of proper procedures’ in effecting dismissal-no formal invitation to dismissal meeting-no investigation-no letter to claimant confirming dismissal-no opportunity to appeal-did not receive full notice entitlement-unfairly dismissed.


For claimant: Himself

For respondent: company director

Decision published: 28th May, 2013

Read full decision here

Mechanic Fails in Constructive Dismissal Claim-Burden of Proof ‘Very High’

A mechanic who left work because of ‘work related stress’ fails in his case for constructive dismissal; EAT says the ‘burden of proof very high’.

Constructive dismissal cases are difficult to win because the burden of proof is on the employee to prove that she had no other option but to resign due to the unreasonableness of the employer.

The January, 2013 decision of the Employment Appeals Tribunal in the case of Daniel O’Gorman v Glen Tyre Company Limited illustrates this.

In this case Mr. O’Gorman was a mechanic who had gone on sick leave in May, 2010 and did not return to work. He resigned from his position in September, 2010.

Mr. O’Gorman brought a case for constructive dismissal.

Decision of EAT

The Employment Appeals Tribunal in its decision referred to the burden of proof on the employee as being a ‘very high one’. It held that the employee must prove that his resignation was not voluntary.

The EAT must look at the contract and decide whether there has been a significant breach of the employment contract going to the root of the contract.

If there has not been a breach by the employer the EAT will then look at the conduct of the employer and employee and decide on the ‘reasonableness’ of the decision of the employee to resign.

The claim by the claimant for constructive dismissal fell under three headings:

  1. The excessive workload placed on him
  2. Exclusion in the workplace, for example at lunch breaks
  3. Being bullied and harassed in the workplace.

Mr. O’Gorman suffered from Asperger Syndrome.

Mr. O’Gorman left work in May, 2010 and did not return due to stress, according to his parents and GP who stated it was work related. However, the employer stated that he did not know this until he received the 2nd medical certificate.

The EAT held that it is crucial in a constructive dismissal case that the employee fully informs the employer of the complaints being made against him and gives the employer the opportunity to resolve the problems.

Interestingly, the EAT in this held that the parents of the claimant had a duty to let the employer know of the issues.

The EAT found no significant breach of contract going to the root of the contract which would have prevented the employee from carrying out his duties as per the contract.

The EAT then examined the conduct of both parties and found that the decision of the employee to resign was not a reasonable one.

The claimant’s claim failed.

For claimant: Cathy McGrady BL instructed by Sharon Devine, Brian D O’Brien & Co. Solicitors, Swords, Co. Dublin

For respondent: Patrick Reidy, Reidy Stafford Solicitors, Newbridge, Co. Kildare

Decision published: Jan. 2013

Read the full decision here.