EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
John Graham UD886/2012
– claimant MN625/2012
Against
Newlands Cross Hotel T/A Bewleys Hotel Dublin Airport
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mrs. M. Quinlan
Members: Mr M. Carr
Mr J. Flannery
heard this claim at Dublin on 3 October 2013 and 15 July 2014
Representation:
Claimant: Mr Paul Hutchinson B.L instructed by,
Sean Ormonde & Co., Employment Matters/Solicitors, Suite 9, The Atrium,
Canada Street, Waterford
Respondent: Mr Stephen Moran B.L. instructed by,
Ms Stephanie Corry, Solicitor, Moran & Bewleys Hotel,
C/O Red Cow Moran Hotel, Red Cow Complex, Naas Road, Dublin 22
Summary of Evidence
The respondent company is an hotel. A confrontation occurred between the claimant and WS at the staff Christmas party in the early hours of Wednesday the 5th of January 2012 and this incident resulted in the claimant’s dismissal on the 2nd of February 2012.
On the first day of the hearing WS (a barman with the respondent) gave evidence of the incident that occurred between himself and the claimant. He denies provoking him and maintains that if he was aware that his cigarette had accidentally burned the claimant he would have immediately apologised. WS accepts that in the confrontation that followed ‘there was two of us in it.’ He was not disciplined.
The doorman SW gave evidence of the claimant’s assault on him. SW did not witness the earlier incident with WS. SW maintains that his evidence given to the Tribunal is the accurate version of events.
The Group HR Manager (HO’B) was approached by the General Manager (RB) on the Friday following the incident. RB was seeking advice on how to proceed; they immediately reviewed the CCTV footage of the incident. HO’B then contacted the claimant’s manager for his knowledge of what happened; as he was on annual leave, a few days elapsed before she could speak to him.
After a meeting with (PP) the financial director, the letter of suspension was then sent to the claimant dated the 12th of January 2012 advising him that a disciplinary meeting would take place to discuss the incidents of the 4th/5th of January 2012. He was advised that the witness statements would be provided to him in advance of the disciplinary meeting. HO’B was responsible for carrying out the investigation.
By letter of the 18th of January the claimant was asked to attend a disciplinary meeting on the 20th of January ‘to discuss incidents regarding your conduct at the annual staff Christmas party’. The letter was issued by (JC) the group purchasing manager. It informed the claimant that as well as JC, HO’B would be in attendance and he was entitled to be accompanied by a work colleague. This letter also enclosed the witness statements. HO’B did pursue more witness statements at the time. Due to staff on annual leave, some witness statements were not available until the meeting on the 23rd of January.
Neither the suspension letter or the disciplinary invitation letter gave the claimant notice of the possible disciplinary action that could be taken against him.
At the disciplinary meeting it was clear to HOB that the claimant was unprepared and unwilling to engage in the process. The meeting was adjourned. The claimant denied all wrong doing. He showed HO’B marks on his hands as a result of the confrontation. The meeting was reconvened and adjourned again, the claimant was asked to be prepared for the next disciplinary meeting. The claimant was offered the opportunity to view the CCTV but replied, ‘what’s the point.’
At the meeting on the 23rd of January the claimant refused the offer of a representative so HOB provided a work colleague to attend with him. HO’B warned the claimant that his failure to co-operate in the process could be deemed a reason for dismissal. HO’B was unable to get a statement from the claimant as to his version of events.
A further meeting was scheduled for the 30th of January 2012. The letter of invitation to this meeting states that,
‘On foot of that investigation you are now alleged to have engaged in physical violence and violent and threatening behaviour against members of staff and others.
The second allegation is that you have failed to cooperate with the investigation to date.’
The claimant was again asked to provide a statement in advance of this meeting and offered a representative. Throughout the process the claimant maintained that he was being used as a scapegoat. The claimant did raise his concerns about PP saying he was fired but HOB did not speak to PP about this.
The claimant did provide a statement for the final meeting. At the meeting the CCTV was viewed by everyone present; the claimant, HOB, SW, TS and KK. The claimant acknowledged that it was a serious incident.
Following the investigation and the disciplinary meetings HOB needed to consider all of the information before making her decision. She concluded that, ‘I prefer the account of the events from the night as given by WS, TS and SW.’ The claimant was summarily dismissed for ‘engaging in deliberate acts of violence and threatening behaviour towards fellow employees.’ The claimant was offered the opportunity to appeal this decision but did not avail of it. As the claimant had engaged in violent behaviour no lesser sanction could be considered.
HOB believes that “from a disciplinary point of view it is better to be Judge and Jury.”
At the resumed Tribunal hearing on the 15th July 2014 the respondent’s representative made an application to play CCTV footage from the night of the incident that led to the claimant’s dismissal. RB the general manager of the Red Cow complex the custodian of the CCTV tapes confirmed to the Tribunal that he viewed the footage with HO’B on the Friday after the incident. He confirmed that he saved the footage to disks and that the footage was not altered in anyway. RB was the duty manager on the night and in a statement made during the investigation process stated that the claimant attempted to head butt the security man. In his evidence to the Tribunal he said the security man was head butted with the claimant making contact with his nose although there was no heavy contact. The incident in the smoking area was not witnessed by RB. The Tribunal viewed the CCTV footage referred to by the witness.
The claimant’s evidence was that he first commenced employment in 2006 and when the respondent took over the business his employment transferred. He worked in the role of courtesy bus driver transporting customers to and from the airport. The claimant reported to the transport manager JC. Any work or safety related issues he reported directly to JC.
On the night of the 4th of January 2012 he was attending the staff Christmas party arranged by the respondent company and had consumed alcohol. While in the smoking area with two colleagues he felt his hand burning and turned suddenly to see WS with a cigarette. He described the burning as if WS was stubbing out the cigarette on his hand. The claimant sought an apology which was not forthcoming and with WS provoking him he charged at WS. The claimant accepted as fair that, with both he and WS contributing, some pushing followed. A bystander was knocked to the ground. He moved away from the smoking area to the blue bar and resumed drinking where he was approached by a man in a black jacket. He was asked to leave and in a panicked reaction leaned forward and pushed the man. Due to his state of mind he was not aware the man who approached him was a security officer. He left soon after.
He returned to work on the 6th of January and some five or six days later he was approached by the general manager who requested him to attend a meeting. He was taken to a meeting room where a director of the respondent company (PP) was waiting. He was asked to view the CCTV footage and PP told him to resign or he would be fired. He later received a letter of suspension which was opened to the Tribunal dated the 12th of January 2012. A further letter dated 18th of January inviting the claimant attend a disciplinary meeting was opened. At that meeting on the 20th of January he informed HO'B of the comments made by PP. He was of the view that regardless of what he said the outcome would be the same. He believed he would be fired as PP had already made up his mind.
At the meeting on the 30th of January he put forward his version of what occurred and strongly challenged the statements of the doorman SW and WS. The claimant’s employment was terminated by letter dated the 2nd of February which was signed by HO’B. He did not avail of the appeals process as he felt the outcome was a foregone conclusion.
Determination
The Tribunal carefully considered all of the evidence including the CCTV footage supplied by the respondent.
The CCTV footage was not completely conclusive and did not provide the Tribunal with any clear or accurate evidence of what occurred on the night in question. The claimant accepted that a confrontation did occur followed by an altercation and he was not proud of his behaviour.
The respondent accepted that the investigation and procedure that followed the incident, leading to the claimant’s dismissal for gross misconduct was not perfect.
The Tribunal do not condone violence in the workplace. However it is noted the claimant was the only employee disciplined following the incident on the 5th January at the staff Christmas party which was organised by the respondent company. It must be stated that the claimant contributed to his dismissal by his own behaviour on the night.
The Tribunal find that the dismissal was unfair and award the claimant €25,000 compensation under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal make no award under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)