EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Ali Brown Aghware UD750/2013
-claimant MN602/2013
against
Duffy Meats Ltd T/A Kerry Foods Wicklow
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Browne
Ms N. Greene
heard this claim at Carlow on 14th April 2014
Representation:
Claimant: Mr. Simon McElwee, Joseph P Farrell, Solicitors,
No 1 Maryborough Street, Graiguecullen, Carlow
Respondent: Mr. Tim O'Connell, I B E C, Confederation House,
84/86 Lower Baggot Street, Dublin 2
Respondent case:
The Tribunal heard evidence from a supervisor (AM) for the respondent. She works for the respondent for eleven years and supervises 67 people. On 15th February 2013 she received a phone call from a team leader (TD) about an incident. So she went to the shop floor. She went to find out what had happened and spoke to GM and SD. SD told her that she had asked the claimant to help out and he said no. SD asked why he said no and that they would help him if needed. The claimant then leaned across to her and said you women have no respect you have to respect me. SD told him to calm down and spoke to him. The claimant then said “Get who you like I don’t care”. The witness statements of the incident were opened to the Tribunal.
The witness called the claimant into a room with another supervisor. The claimant was asked for a statement but he did not give one on 15th February because he was too angry. He wrote a statement at a later time. The claimant’s statement was opened to the Tribunal.
The witness decided on foot of the information to escalate the matter further. She took the statements and gave them to her manager EM.
The witness also outlined two other incidents one of which involved a matter about safety gloves and another regarding the claimant enquiring about a bonus payment.
The Tribunal heard evidence from EM, the production manager. He explained that five or six supervisors report to him. AM had informed him about the incident involving the claimant. AM investigated the incident and on analysis she handed the matter over to him. He opened a disciplinary hearing and the claimant and a shop steward attended, and a note taker also attended.
He went through the events and discussed them with the claimant. They went through the witness statements with the claimant. There was a conflict between the claimant’s version of events and the witnesses’ version of events. At one point during the meeting they had to ask the claimant to calm down. At one point the claimant started to argue with his own representative.
They had some other meetings with the claimant and it became clear that the claimant had one version of events and the witnesses had another version of events. He eventually wrote to the claimant on 27th April 2013 inviting him to a “concluding meeting”. The witness explained that “on foot of all of the hearings and all of the evidence we felt that there was a clear threat of violence.
At one point it was put to the witness that after four meetings with the claimant it was said to him that he was both investigating and judging the matter. The witness explained that another person did the investigation and he was judging the matter.
Claimant’s case:
The Tribunal heard evidence from the claimant. He commenced working in the respondent in 2003. He did receive one verbal warning “three or four years ago” and this was for and incident at a clocking machine. The claimant explained the incident. His trade union representative appealed the warning but there was no reply from the respondent company.
The claimant was asked directly if he had ever had a problem with female team leaders before and he replied “No”.
The claimant was asked about the glove incident and he explained to the Tribunal the incident. He also explained about the bonus query that he had asked the respondent about.
Regarding the main incident on the line, he explained that he was working on the line and when it started running he was not ready or prepared. A colleague (SD) did ask him for help and he told her that he could not as he had three items on the conveyor and that they would fall and that he was working on his own. SD said to him and repeated “so you are not going to help?”
He was asked if he threatened anyone and he explained “I went to their side of the machine but not to them I just went to the other side of the pallet because GM is shorter that the pallet”. He told GM that she was disrespectful and that she was not his team leader. He did not follow her when she left he followed her to the office to get the quality control book.
The claimant explained that none of the statements mentioned he was growling and that that allegation was only put to him after the meeting. He also explained that he was not given policy documents. He did not see the statements until just before he had the third meeting.
Determination:
The fact of Dismissal was not in dispute in this Case. Accordingly, the onus was on the Respondent Company to satisfy the Tribunal that the dismissal of the Claimant was fair.
Having considered the totality of the evidence and the documents submitted, the Tribunal is of the opinion that the Respondent Company has not met this onus.
Notwithstanding the position adopted by EM, witness for the Respondent Company, that he had only dealt with the Disciplinary Process, it is abundantly clear that AM simply gathered statements but that it was EM who actually conducted the Investigation.
In those circumstances, it was certainly not ideal that EM would make the Decision to Dismiss.
The Tribunal is of the opinion that there were shortcomings with both the Investigative and Disciplinary Processes .
The Notice of Dismissal of the 8th April 2013 confirmed the Dismissal to be for “violent and intimidatory behaviour which amounted to serious misconduct”. During the Processes, mention had been made of failure to follow lawful instruction, however, this was not cited as a factor in the decision to dismiss.
The Tribunal had a number of concerns in relation to the Investigative Process. The tenor of the minutes of meetings is indicative of a level of prejudgement on the part of EM and the Respondent Company It seems to the Tribunal that the Company had possibly assumed but had certainly concluded at an early date that the witness as against the Claimant had given statements which were factually correct.
Copies of Statements were not given to the Claimant at the outset and as late as the Third Investigative Meeting on the 15th March there still seemed to be an issue as to his entitlement to the copies of the Statements. He was still asking for Statements on the 3rd April when told he was being dismissed. He was not afforded an opportunity to challenge the witnesses against him. The Tribunal is of the view that this is a case where fairness would have dictated that he be given this opportunity in circumstances where he disagreed with the contents of those Statements and where there were significant conflicts in respect of fundamental facts
The Tribunal is of the opinion that the Respondent Company seemed to disregard the importance of “respect” to the Claimant and appeared disinclined to accept that the Claimant might be upset by what he considered to be an injustice.
Part of the way through an Investigative Meeting the Claimant was challenged about the throwing of packets of rashers at S without any prior notice that this allegation was going to be made. While EM advised the Tribunal that this complaint was not pursued due to the absence of Independent evidence, he, nevertheless, advised the Tribunal that it “was considered”.
It seems to the Tribunal that EM went about confirming the accuracy of the witness statements and in getting the Claimant to agree with the contents of these rather than investigating what precisely had occurred, the background to same and the precise role of all participants.
Significant from the Minutes of the Investigative Meetings is that as early as 11th March the Claimant was disagreeing with the Statements taken by AM. The Claimant was not given full and reasonable opportunity to examine these witnesses. The Claimant was consistent in his position that he was simply seeking the respect to which he was entitled as an employee.
It seems to the Tribunal that a reasonable Employer might perhaps have looked to the possibility of informally resolving the intra employee conflict that had arisen. Give the Claimant’s 10 year history of employment as a good worker within the Respondent Company the Tribunal is of the opinion that a reasonable employer would not have disregarded the possibility that there was a clash of personalities or, indeed, a possible clash in cultural expectations that could have been resolved without the escalation to a Disciplinary Process.
The Tribunal is of the view that the tenor of the questions to the Claimant at the Investigative Meetings was accusatorial rather than inquisitorial and directed at getting to the truth of what had occurred.
Significant from the perspective of the Tribunal in considering the Investigative Process is the fact that the Claimant’s SIPTU Representative challenged what he appeared to see as the intimidatory nature of the questioning directed at the Claimant. The Claimant clearly felt he was been badgered by EM in the manner in which he was questioned.
More than once during the Investigative Meetings, EM challenged the Claimant for being angry towards him and others and suggested to the Claimant that he was not doing himself any favours. It was completely inappropriate, in those circumstances, for EM to then proceed to decide the Claimant’s fate in the Company.
Indeed, the Claimant had expressed to EM during the Investigative Process that the manner in which he was being dealt with indicated to him that the outcome was a foregone conclusion.
The letter of the 2nd April 2013 from E.M to the Claimant clearly referred to four “Investigative Meetings” and requested that the Claimant attended a Disciplinary Meeting on the 3rd April 2013. Clearly, by the time the Claimant attended this Disciplinary Meeting, which appears to the Tribunal to have been the first true Disciplinary Meeting, the decision to dismiss him had been made and it was presented to him as a fait accompli.
In essence, the Tribunal is of the opinion that E.M was accuser, investigator, decision maker and sanction giver in circumstances where in a Company of this size, there should have been no impediment to the separation of these roles .
These Procedural shortcomings are sufficient to make the Dismissal Unfair. Accordingly, the Tribunal does not need to profer an opinion as to whether a reasonable Employer would have considered the Claimant’s behaviour, if it occurred as suggested by the two principal witnesses, to be “violent and intimidatory behaviour which amounted to serious misconduct”.
Further, the Tribunal has grave concerns as to the proportionality of the sanction of dismissal in all of the circumstances of the incident.
The Tribunal determine that the Claimant was Unfairly Dismissed. The Tribunal awards compensation in the sum of €45,000, under the Unfair Dismissals Acts, 1977 To 2007.
The Claimant is also entitled to Notice Pay of €2,428.00, which is hereby awarded under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)