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Tony Molloy v Kaefer Limited (ADJ-00053834) is a recent unfair dismissal case that was before the Workplace Relations Commission (“WRC”). The Complainant brought the complaint under the Unfair Dismissal Acts 1977-2015 (the “Acts”) claiming his dismissal was both procedurally and substantively unfair. The Respondent denied this and claimed that his dismissal was necessary because it was impossible for the Complainant to continue in his role due to its client’s insistence that he be removed from their site.
Facts: The Complainant was employed by the Respondent from 17th October 2016 until his dismissal on 29th May 2024. He was employed as a mechanical technician/fitter and was based on a site managed by a primary client of the Respondent since the beginning of 2024.
Under the commercial contract between the Respondent and the client in question, the Respondent, through the Complainant and his team, completed specified mechanical works as outlined in permits issued by the client. The Respondent submitted that on 26th April 2024, and in the following days, the Complainant repeatedly refused to take responsibility for the permits or carry out duties as a permit holder, despite ongoing requests from his supervisor and other members of management. The Complainant gave evidence that his refusal was due to the recent initiation of the disciplinary procedure against a colleague because of a defect under such a permit and his belief that the permit process conferred an unacceptable level of liability upon him (regardless of the cause of the defect itself). He wanted his concerns addressed before he took up these duties again. The Respondent told the WRC that the Complainant was suspended with immediate effect from 15th May 2024 following his continued refusal to perform his duties. The Complainant emailed an apology to the Respondent following his suspension, accepting that his actions had been unacceptable.
The Respondent intended to proceed with a disciplinary process, however prior to the scheduled disciplinary hearing the client issued the Respondent with a formal letter requesting the Complainant’s removal from their site on an indefinite basis. The Respondent gave evidence that they asked the client to reconsider, but the client refused and insisted that the Complainant be removed from site. The Respondent submitted that they were contractually obliged to follow this directive and for that reason, they made the decision not to pursue the disciplinary process. They dismissed the Complainant and communicated this to him in correspondence on 29th May 2024.
The Respondent’s Operations Manager gave evidence that their preferred outcome from the disciplinary procedure would have been a disciplinary sanction short of dismissal and the imposition of a Performance Improvement Plan (“PIP”), however the client’s reliance on a pre-agreed contractual term “forced their hand”. Evidence was given on behalf of the Respondent that they increased the Complainant’s notice pay from four to eight weeks as a gesture of goodwill. The Complainant appealed his dismissal, but it was upheld.
The Complainant identified a number of procedural failures on the part of the Respondent, and argued that dismissal was disproportionate. The Respondent argued that the dismissal was fair because there were other substantial grounds justifying the Complainant’s dismissal, namely the client’s refusal to have him back on site, and he was not dismissed for misconduct.
Decision: The Adjudicator, Mr. Brian Dolan, found that the Complainant had been unfairly dismissed. Under the Acts, the dismissal of an employee is deemed unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. There are a number of grounds that an employer can rely on to demonstrate that a dismissal was substantively fair under section 6(4) of the Acts. A further basis on which an employer can rely in defending an unfair dismissal claim is contained in section 6(6) which provides as follows:
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.” [our emphasis].
The Adjudicator noted that section 6(6) is often invoked by employers seeking to justify dismissal in circumstances where a client refuses to permit an employee on site, arguing that this amounts to “other substantial grounds” under that subsection.
The Adjudicator noted the client in question was a primary source of work for the Respondent. However, the Adjudicator referred to a series of decisions addressing the reliance on “other substantial grounds justifying the dismissal” by employers experiencing pressure from third parties to remove employees from their sites. He pointed out that these authorities have established an onus on employers in these circumstances to consult with the third party, advocate on behalf of their employee, and consult with the affected employee on other roles that may be available in their organisation.
In Merrigan v Home Counties Cleaning Ireland Ltd (UD904/1984), the Employment Appeals Tribunal (“EAT”) (as it then was) found that “The job of an employee cannot be at risk on the mere whim of a third party to the employment relationship”.
In Derek Hevey v Provincial Security Services Ltd (UD447/2011), the EAT found that a Respondent “…will be expected to show that it has concluded an investigation into the reasons for the refusal of the respondent’s customer to have the claimant work on the site.”
In An Employee v An Employer (UD205/2010), the EAT held that:
“Every case must be considered in the light of its own particular facts. The dismissal of an employee brought about through pressure from third parties whether customers, clients, fellow employees or others may be justified provided the employer acts fairly and handles the procedure and investigation properly.”
In the present case, the Adjudicator found that the Respondent could not rely on section 6(6) of the Acts and held that the Complainant was unfairly dismissed. The Adjudicator observed that it seemed apparent that the Respondent simply accepted the client’s decision to remove the Complainant at face value and did not appear to advocate on his behalf. While evidence was given that the Respondent did speak with the client in this regard and asked them to reconsider, the Adjudicator found that the Respondent’s efforts were inadequate.
The Adjudicator awarded compensation to the Complainant. In relation to the level of the award, the Adjudicator commented that
“it is clearly apparent that the Complainant viewed his own behaviour as unacceptable and in consideration of the factual matrix presented by the parties, it is clear that these issues directly contributed to his dismissal.”
The Adjudicator awarded €10,000 in compensation, taking into account the Complainant’s contribution to his own dismissal and his efforts to mitigate his losses.
Takeaway for Employers: This case highlights the obligations on employers who are faced with a decision by a client not to permit one of their employees back on site. This type of scenario can pose a significant problem for employers in circumstances where the employee in question works primarily, or exclusively, on that client’s site. Such a decision does not always arise in response to a misconduct or performance issue, making it very difficult for employers to address in line with their policies. Even where there are misconduct or performance issues, employers are often placed in a difficult position when clients refuse to permit an employee to remain on site while they conduct an investigation or disciplinary process
What is clear from the case law in this area, including this decision, is that employers have obligations to their employees that cannot be circumvented because of a client’s directive. What will be appropriate in one situation may not be suitable in another and employers need to ensure that their approach and response is tailored to the particular facts and circumstances.
It is advisable for employers to seek legal advice as this can be a complex area.
Links:
https://www.workplacerelations.ie/en/cases/2025/december/adj-00053834.html
You may also be interested in our previous article on a WRC case involving dismissal of an employee arising from a cancelled SLA. Link available here .
Authors – Tara Kelly and Jenny Wakely
27th January 2026
Anne O’Connell Solicitors
19-22 Lower Baggot Street
Dublin 2