EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE-claimant UD2339/2011
Against
EMPLOYER
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr K. Buckley
Members: Mr D. Hegarty
Mr O. Wills
heard this claim at Cork on 25th June 2013
and 3rd September 2013
Representation:
_______________
Claimant:
Respondent
Respondent’s Case
The respondent is a manufacturing company that employs approximately 150 people in a factory. The claimant was a team leader and dismissed for gross misconduct following an incident on the 22nd June 2011, where he was accused of abusing two colleagues and racially abusing one. Witness statements were provided by PM and AS who were in receipt of the abuse and read into evidence
The dispatch manager (PB) gave evidence. He provided a statement that was read into evidence. He told the Tribunal that he requested to speak to the claimant and the claimant said ‘take me upstairs if you want’. The claimant was not behaving as normal, he was upset and dismissive and PB felt he wasn’t hearing anything being said. The claimant admitted the incident and did not show any remorse. On instruction from the HR manager the claimant was suspended and asked to leave, PB walked him to the clock machine and then to his car.
The HR manager (CG) told the Tribunal that PB came to the office and called her outside. He informed her that an incident had occurred and that he had received verbal complaints of racial abuse from two staff members that were very upset and that he had subsequently spoken to the claimant. The claimant was very angry and it would not be appropriate to leave him working for the night. Consequently she decided to suspend the claimant and wrote a letter to that effect on the same day; the 22nd of June suspending him on full pay pending an investigation.
CG undertook the investigation. As part of this investigation she took statements from the staff involved and an investigatory meeting was set up for the 27th of June. CCTV footage of the incident was shown to the Tribunal. The CCTV shows the claimant and two other staff members outside the factory interacting.
On foot of the investigation CG sent the claimant a letter dated the 28th of June requiring him to attend a disciplinary meeting on the 29th of June 2011. The statements and grievance and disciplinary procedure were enclosed. The letter outlines the allegations,
· ‘That on Wednesday last, June 22nd, 2011 that you were allegedly aggressive and verbally abusive towards fellow colleagues…
· That on the same date, you allegedly made racist comments toward (colleague)’
The letter further states that,
‘If you are unable to provide a satisfactory explanation in this regard, you may be given a warning in accordance with our disciplinary procedure.’
Both CG and PB were in attendance at the investigation meeting and the disciplinary meeting. The claimant declined to have representation at the meeting.
CG said that she felt the claimant had a serious case to answer. Although the disciplinary letter indicates a warning could be the consequence, CG is in no doubt that the claimant was aware that he could be dismissed. The claimant admitted the allegations but said it was as a result of long-term bullying. The claimant had never raised any grievance, formally or otherwise regarding any of his colleagues. CG did ask the staff that made the complaints if they had ever called the claimant names or had any previous problems; they both said no and maintained they had a friendly relationship, one having given the claimant a lift home on many occasions and helped him move house.
CG sent a printed version of the notes taken at the disciplinary meeting to the claimant and he returned them with additions. She considered his additions to the statement but they didn’t alter her decision to dismiss him. CG later got a telephone call from the claimant’s sister who said it was a serious situation and that the claimant would send in a follow up letter. CG didn’t open the letter, she felt that she had made her decision based on the evidence she had been given and the letter could be used for the appeals process. She issued a letter of dismissal to the claimant on 5th July which included the opportunity to appeal her decision. CG decided who the appeal would go to and informed both the appeal officer and the claimant of the details.
Asked about her decision CG told the Tribunal that it was a totally unprovoked incident that left people hurt and abused. It was totally unacceptable for a team leader to racially abuse anyone and they had lost all trust in him.
The Group Operations Manager (KC) gave evidence. KC was the appeal officer. On receipt of the claimant’s letter outlining his grounds for appeal KC invited him to an appeal meeting to take place on the 18th of July 2011. The claimant’s representative requested a number of witnesses to be available for cross examination. KC informed the claimant that witnesses would not be made available as written witness statements were available. KC spoke to the complainants who both said that they would find it difficult to work with the claimant again. KC wrote to the claimant on the 29th of July 2011 responding to each of the claimant’s grounds for appeal. The decision to dismiss was upheld by KC for the following reasons;
· ‘Serious verbal and racial abuse, which was accompanied by threat and intimidation, was directed by you towards a number of different team members at different stages on the afternoon of June 22nd, 2011. All such actions, including the racial abuse are a violation of employee’s rights to come to work and be treated with dignity and respect.
· You were the shift team leader on the evening in question and as an experienced and trusted employee and team leader you should have acted in a more responsible manner.
· The nature of the working environment and given that we have a multi cultural workforce the company cannot and will not tolerate such treatment by one employee towards another.
· Your actions have caused irreparable damage to trust and confidence in the employment relationship.’
The claimant’s representative attended the appeal meeting and made no objection to KC hearing the appeal. KC was aware that the claimant had been suspended but had no involvement in the disciplinary process. It was in KC’s power to change the sanction of dismissal if the circumstances warranted it. A conciliation process between the claimant and the complainants was not appropriate because of the nature of the incident.
KC was made aware by the claimant that he had made a bullying & harassment complaint to KC’s predecessor in 2001. KC checked the staff records and the people the claimant allegedly complained about no longer work for the respondent and have not worked for the respondent for some time; they have no bearing on the incident that led to his dismissal. KC could not find any evidence of a formal complaint made at any time.
Claimant’s Case
The claimant commenced employment in the production area of the respondent in 1997; he was working in dispatch at the time of the incident. A number of incidents happened throughout the years that culminated in the disagreement of the 22nd of June 2011.
The claimant’s work colleagues made snide comments to him which he normally ignored. If he walked by a group of people they would say ‘thick’, it was not said directly to him but was aimed at him. It was different members of staff all the time. The claimant never complained as he did not know the complaints procedure and did not want to get anyone in trouble. The claimant accepts he received the staff handbook but it was not explained to him. He did mention the situation to a manager in 2001 but did not make a formal complaint.
On the day in question 2 colleagues were looking at the claimant and subtlety laughing. The claimant felt that they were mocking him. This was the final straw for the claimant and he confronted them. He accepts that he used abusive and racially abusive language but maintains it was of a “mild nature.” He regretted his actions the next day. This was the first incident that the claimant had been involved in.
The claimant expected to be suspended but not dismissed given his long service and clean record. He signed the notes of the meetings as he did not think he would be dismissed. He would have secured a representative early in the disciplinary process if he thought there was a possibility that he would be dismissed.
The claimant gave evidence of his loss and his attempts to mitigate his loss.
Determination
The Tribunal are satisfied that no formal complaint of bullying and harassment was made by the claimant and therefore the respondent had nothing to investigate.
The Tribunal takes the view that the letter requiring the claimant to attend the disciplinary meeting should have clearly explained that the consequences of the disciplinary procedure could lead to sanctions up to and including the claimant’s dismissal. The Tribunal are of the view that the claimant was entitled to conclude, given the contents of the letter, that a warning in accordance with the company’s disciplinary procedure was the severest sanction that he would face. Had the claimant been fully informed, he might have opted at that early stage to have been properly represented at the disciplinary meeting. While the sanction might not have been different, the Tribunal took the view that the claimant was entitled to be made fully aware of the possible consequences of the disciplinary procedure in advance of attending the meeting.
While the Tribunal takes the view that the claimant’s actions may merit dismissal, the procedures used by the respondent in effecting that dismissal were defective and flawed. Consequently the claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the Tribunal award the claimant €7,000 in compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)