The Workplace Relations Commission (WRC) has recently decided the case of McVeigh v Dunnes Stores, ADJ-00036287, in which an employee complained that he had been dismissed resulting from an incident that occurred outside of work. Our Adrian Twomey highlights the key points to note in the decision.
The Complainant, Mr. Gerard McVeigh, was employed by Dunnes Stores as a General Assistant between 22 June 2017 and his dismissal on 8 September 2021. It appears from the decision of the WRC Adjudication Officer that he had been arrested by the Gardai and charged in the District Court under the Criminal Law (Sexual Offences) Act 2017 after a non-work related incident in another store in July 2021. The incident came to the attention of Dunnes Stores after an article appeared in a newspaper.
When the Complainant attended for work the following evening, he was questioned about the issue by a manager. He confirmed that he had indeed been arrested. He was suspended with pay and asked to attend at a meeting with the Store Manager. At that meeting, he was questioned about the incident and the newspaper article. He was asked to explain what had happened. The Complainant apparently refused to comment other than to confirm that he had been arrested and to state that he would be fighting the charge or charges against him.
The same store manager later made a decision to dismiss the Complainant and that dismissal was upheld after an appeal based on written submissions only. It appears that the dismissal was based on the alleged breach of Dunnes Stores' Code of Conduct which provided that employees were not to do anything likely to bring the company's reputation into disrepute. The Complainant submitted a complaint under the Unfair Dismissals Act 1977 (as amended) to the WRC.
There were a number of factors relating to the dismissal that were arguably open to criticism. Those factors included the following:
The incident in question did not occur at work or in the course of the Complainant's employment;
Whilst the newspaper article mentioned the Complainant's name it apparently did not mention Dunnes Stores;
The employee does not appear to have had any disciplinary record before being dismissed and appears to have performed satisfactorily in his job;
The dismissal appears to have occurred before any trial in the District Court;
It does not appear from the decision that the Complainant was ever convicted and he had maintained his innocence when speaking with his employer;
The suspension was lengthy and the need for it was open to debate;
The Store Manager appears to have conducted an informal investigation into the matter and subsequently made the decision to dismiss the employee.
There was no oral hearing at the internal appeal stage.
The Adjudication Officer was asked to consider:
"the case of Marvin Moore v Tesco Ireland Ltd (UD2423/2011) wherein the complainant was found to be unfairly dismissed and was awarded €11,500 even though the complainant ... had been convicted of the sale and supply of drugs. A further case of Noonan v Dunnes Stores [was cited] ... [in which] ... the Circuit Court “considered the dismissal of an employee by the company to be unfair after he had assaulted a Garda Sergeant. The Circuit Court deemed the dismissal to be unfair as the conduct was not connected with the workplace”."
Despite those earlier decisions and the factors listed above, the Adjudication Officer concluded that the dismissal of Mr. McVeigh was not unfair, noting that:
"In O’Riordan v. Great Southern Hotels [UD1469-2003] the [Employment Appeals Tribunal] stated as follows:
'In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.'
In the within case there were clearly a number of issues which the respondent was required to address."
"The allegations against the complainant were very serious and would have important implications for both the respondent and the complainant. Trust is an essential component of all employer/employee relationships."
The Adjudication Officer appears to have been particularly influenced by the Complainant's apparent refusal during the internal processes to make any significant comment other than to confirm the fact of his arrest, maintain his innocence and to state that his solicitor had advised him not to speak to anyone about the incident. Nonetheless, it is worth remembering that a number of similar cases have been decided differently and employers should not regard the McVeigh case as giving them the freedom to dismiss employees with impunity arising from incidents occurring outside of work.
The outcome highlights the fact that it is important for those involved in internal disciplinary processes that could result in dismissal to seek and obtain appropriate advice. Those who require advice in such circumstances or who need representation before the WRC can contact our Adrian Twomey.