UD1852/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                   CASE NO.

                                                                                                                     UD1852/2011

Employee        -           claimant

against

Employer         -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms D. Donovan B.L.

Members:        Mr. B. Kealy

                        Mr. G. Whyte

heard this claim at Dublin on 14th February 2013

                                       and 2nd September 2013

Representation:

Claimant: Ms Chris Rowland, SIPTU, Misc, Liberty Hall, Dublin 1

Respondent: Ms Sheila Treacy, IBEC, Confederation House, 84-86

                     Lower Baggot Street, Dublin 2

Background:

The respondent is an acute private hospital. The claimant worked in the canteen.

Respondent’s case:

The Tribunal heard evidence from the HR director. He explained that the claimant was employed in the canteen and was given an induction course and was aware of the standards required. The witness explained the respondent’s policy and procedures and the company handbook was opened to the Tribunal.

The witness explained the incident, which was an episode of physical violence that culminated in the dismissal of the claimant. The “kernel of which” was that the claimant’s sister, who also worked in the hospital, came into the canteen. The claimant made a comment and walked over to her sister and an altercation ensued in that the claimant assaulted her sister and her sister responded and it resulted in blood being drawn. There was a member of the public in the canteen and another staff member (SS) was also there. SS apologised to the member of the public.

It transpired in later evidence that the incident happened circa 4.45 pm (on Thursday 21^st April 2011) and claimant was in her work uniform and due to finish at 6:00 pm and the claimant’s sister was not in her uniform and was due to commence work at 5.00 pm.

The witness requestedthe catering manageress to investigate and go through the procedures. The claimant and her sister were suspended on full pay.   The investigation took three weeks and there were three meetings.  

The witness explained that he believed that the key issue in terms of the investigation was that the claimant’s sister came into the canteen but that it was the claimant who took the incident to a new level.   He gave the matter a lot of thought and reflection. What happened was a violent altercation and he considered the appropriate disciplinary sanction. Both the claimant and her sister were dismissed. He concluded that both of them were culpable. Ultimately it was violence in the workplace. It was with great regret that he took the decision to dismiss. Physical assault was a serious event.   His thought was that both were aware of the gravity of the situation.

2^nd Day of hearing.

The staff member (SS) who was present at the incident gave evidence.   She explained that she knew of a bit of a difficulty between the sisters. She was working at the till and the claimant was on her break whenthe claimant’s sister (L) entered the restaurant. The claimant said to her that she knew her sister would come in whilst she was on her break.   L walked over to her as she and L were friendly. The claimant laughed at L and L called her a psycho. The claimant “stormed” over twenty feet to L and said to L to leave the canteen. She told L that she was warning her. SStold both of them to stop and that there was no need for their behaviour. At this point L was behind her and the claimant was in front of her; she was between the claimant and L. The claimant had a hold of L’s arm. L fell back a bit. L told the claimant “stop, don’t be doing this”. SS said that she was trying to stop them. Then L’s arm came over her shoulder and hit the claimant in the face.

When the witness was asked who the aggressor was she explained that she thought it was the claimant and if the claimant had not got up from her seat it would not have happened. L then said to the claimant that she could not believe that she had done what she did and that she was going to the office.

The Tribunal heard evidence from the patient services manageress.   She explained that L arrived into the office at circa 4:55 pm. She was upset and was holding her arm. She sat L down and saw prominent scratch marks on her arm and her skin was wrinkled and blood was coming out of the wound. She got alcohol wipes and cleaned her wound.  

The Tribunal heard evidence from the chief operations officer.   The claimant appealed her dismissal and he and the training development officer heard the appeal. The sanction of dismissal was upheld because the respondent could not tolerate the behaviour; the claimant had causeda breach of trust with the patients, the hospital and the catering team.

The witness clarified to the Tribunal that the claimant’s sister was also dismissed but she did not appeal her dismissal to him.

Claimant’s case:

The Tribunal heard evidence from the claimant. She explained that she worked from 10:00 am to 6:00 pm. The week of the incident she had twice gone out for a cigarette on her break and her sister had passed by her.   On the day of the incident she therefore decided to stay in the canteen for her break.   She had said to SS that her sister would probably call into the canteen if she saw that she was not outside on her break.

She was on her phone when her sister arrived. She told her sister to leave the canteen and her sister said no and was laughing at her. Her sister then called her a psycho.   She put her hand on her sister’s arm/shoulder to guide her out and as they got to the coke machine her sister hit her across her face.   Her sister told her that she would be sorry for what she did and was going to report her. She washed her face and then went to the office. She was told that she was suspended and to go home.

In cross-examination the claimant disagreed that her sister called to SS to talk once or twice a week. She maintained that she called to SS once every few weeks. She disagreed that she walked over to her sister aggressively.   She did not leave the canteen because it was where she worked.

She agreed that it was not her job to tell people to leave the canteen. She did not grab her sister, she held her by the arm.   When put to her she disagreed that SS was between them, SS was not keeping them apart she just told them not to argue. She did not notice any blood on her sister.

When asked by the Tribunal if she could have left the canteen when her sister arrived she agreed that she could have. She agreed that she did not have the authority to remove someone from the restaurant.

In answer to clarification forthe Tribunal the claimant explained that she and her sister had been good friends and they had a falling out two to three weeks before the incident.

Determination:

Having carefully considered the evidence adduced at the hearing the Tribunal finds that the conduct of the claimant left the respondent with no other option but to dismiss her.   The Tribunal is satisfied that the respondent fully considered the situation, particularly as regards other possible sanctions, before arriving at the decision to dismiss.

The Tribunal finds that the procedures used by the respondent in effecting the dismissal were fair and reasonable.

Accordingly, the claim under the Unfair Dismissals Acts 1977-2007fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)