Employee’s appeal of final written warning leads to summary dismissal for gross misconduct

An unusual feature of the case involving Martin Browne and Egis Road & Tunnel Operations Limited is the fact that he was firstly issued with a final written warning arising from a “prank” but was dismissed summarily on appeal.


Martin Browne was a Duty Manager in the Tunnel Control Room at the Dublin Port Tunnel. In January 2018 a prank was played on one of the tunnel workers by his Toll Supervisor. The Toll Supervisor had told the worker that there was a serious accident in the tunnel involving a coach and a car and there was debris all over the tunnel.

The worker made a complaint about the Toll Supervisor and an investigation was carried out. Martin Browne was invited to the investigation as he was the senior manager present at the incident with responsibility for the tunnel and the worker who made the compliant about the prank.

The outcome of the investigation was

  • The Toll Supervisor admitted he had pulled “an ill thought out prank”
  • Martin Browne appeared to be involved in the incident and did not intervene

The matter was put forward for a disciplinary hearing. Martin Browne complained about the use of cctv in the disciplinary, but the employer held it was entitled to use the cctv as it was for health and safety purposes.

The outcome of the disciplinary was a two-week suspension from work and a final written warning.

Martin Browne appealed the outcome of the disciplinary. The Appeals Manager found that the final written warning was not the appropriate sanction but increased the sanction to summary dismissal, having regard to all the circumstances.

WRC claims

Martin Browne brought a claim for unfair dismissal and non-payment of wages to the WRC. He was seeking €86,000 for loss of earnings during the two years following his dismissal and had taken up a new job at a lesser salary of €42,000 as opposed to the €64,000 annual salary with the Dublin Port Tunnel employer.

WRC decision

The adjudicator pointed out that her job was not to establish guilt or innocence but to decide whether the employer had acted reasonably in the circumstances. This view was supported by

  • Looney and Co Ltd v Looney UD 843/1984 and
  • The Governor and the Company of Bank of Ireland v James Reilly (2015) IEHC 241

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”

The adjudicator looked at the procedural framework used to arrive at the dismissal decision. She looked at Bord Gais Eireann v A Worker AD1377 which set out the remit as follows:

It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

The adjudicator found:

In considering the question of fair procedures, I note that the High Court in its determination in the case of Shortt v Royal Liver Assurance Ltd (2008) IEHC 332 Laffoy J outlined that a central consideration to a fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result”.  I note also the determination of the Employment Appeals Tribunal in the case of Murphy v College Freight Ltd (UD867/2007) where the EAT noted that a disciplinary procedure does not need to be “a counsel of perfection” but rather “they must be fair”.

The general approach to the question of the employer’s response falling within a range of reasonableness is set out in Noritake (Irl) Ltd v Kenna UD 88/1983 as follows:

1.       Did the company believer that the employee misconducted himself as alleged?

2.       If so, did the company have reasonable grounds to sustain that belief?

3.       If so, was the penalty of dismissal proportionate to the alleged misconduct?


The adjudicator found that in all the circumstances the employer’s decision to terminate the employment summarily for gross misconduct was reasonable. And an employee who is dismisses for gross misconduct is not entitled to notice.

Thus, the employee’s claims for unfair dismissal and non-payment of wages or failure to give a notice period failed.

Read the full decision here.