Dunnes Stores employee charged with lewd act in Marks and Spencer loses unfair dismissal case

Can you be fairly dismissed if you have a perfect disciplinary record and ‘exemplary work record’ in your job? The answer is yes.

Dunnes Stores dismissed a general assistant, Gerard McVeigh, for something that occurred outside the workplace. McVeigh was charged in the District Court with committing a lewd act-masturbating himself-in the toilets of Marks and Spencer on Mary Street.

Dunnes Stores dismissed him for gross misconduct. The WRC found that this decision fell within the range of reasonable responses open to the employer.

When the case received some publicity Dunnes Stores gave Mr McVeigh the opportunity to explain himself. Mr McVeigh failed to do so on advice from his solicitor who told him not to discuss the matter with anyone.

Mr McVeigh repeatedly declined to offer any information about the charge or the alleged offence, on his solicitor’s advice. Dunnes Stores dismissed him “with immediate effect as a result of his alleged inappropriate conduct outside the workplace”.

Dunnes Stores feared that his alleged conduct may damage the company’s reputation in the eyes of the customer. Dunnes Stores claimed at the hearing that their store was community based and staff and customer live in the adjacent catchment areas.

The WRC adjudicator noted that Mr McVeigh was given four opportunities to clarify and explain matters, and again at the appeal hearing. He had failed to do so as he was advised by his solicitor not to discuss the matter.

The WRC found that Mr McVeigh’s claim for unfair dismissal was not well founded and dismissed it.