EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1280/2013
CLAIM OF:
Henry Osei Afriyie
Against
Joseph Brennan Bakeries
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr. L. Tobin
Mr F. Barry
heard this claim at Dublin on 27th January 2015 and 16th April 2015 and 17th April 2015
Representation:
_______________
Claimant: Mr Vincent Crowley, Collins Crowley, Solicitors, 2a Christchurch Hall, High Street, Dublin 8
Respondent: Barbara Ceillier, Solicitor, M&B Ceillier, 12 Whitefriars, Peter's Row Dublin 2
Background:
The respondent operates a bakery where the claimant was a general operative. The dismissal is based around an incident that occurred on the night shift of 28th July 2013. An altercation between the claimant and his supervisor, witnessed by other work colleagues, led to his dismissal on 1st August 2013. CCTV was shown to the Tribunal.
Respondent’s case:
DR, lead operator, told the Tribunal that on the night in question he told employees to go on their 45min break. 10/15mins later the claimant walked towards him and DR told him he should be gone on break as well as everyone else.
On DR’s return CC (supervisor) was waiting for them, he wanted DR and the claimant to clean blades on the machines. The claimant had not returned from break and CC went to the canteen to look for him. DR said that CC obviously missed the claimant as he arrived on the factory floor not too long afterwards.
DR witnessed the conversation between CC and the claimant. CC was saying “your always late, its unacceptable, a battle all the time, will have to speak to manager about it”. The claimant just ignored CC, he just stood there but DR could see he was getting agitated.
The claimant then approached DR, and told him he was wrong regarding the times, but DR told the Tribunal that he himself was gone for 50mins and that the claimant had gone on break before him, so he knew for sure that he claimant was late returning. The claimant then began to get a little aggressive with his tone and his body language. DR told him, calm down, think about it and if he was unhappy he could make a formal complaint.
DR then said that the claimant went back to CC, and “lost it”. He was enraged, poking him in the chest, swearing and told CC he would slap him, holding his hand a few inches from his face. The claimant was told to leave but continued to rant over a considerable period of time and eventually security was called. He reluctantly went upstairs but then returned in his civvies and approached DR again who told him there was nothing he could do for him, he had been way out of order, ring in the following day and put himself at the mercy of management. Security escorted him off the premises. DR was asked to write a statement and did so a day to two later.
CC gave evidence of looking for the claimant in the canteen when he had been on break for over an hour. When he approached the claimant asking where he had been, the claimant just ignored him. He asked to claimant to go to the office but he refused. CC said that the claimant was always late, late starting, late from breaks and it “threw everything off”. CC then told him that he would be reporting the issue to NB and would issue a warning every time the claimant was late. The claimant told him “he was nothing and had no authority to do any such thing”. He then began to argue and threaten CC poking him in the chest and told him he would slap him. CC asked him to return to work to calm the situation down but he kept arguing. Eventually CC had no option but to call the security guard to have the claimant removed and then left a memo for NB in the production manager’s office. SV a security officer with the respondent gave evidence to the Tribunal which concurred with CC’s recollection of events.
NB told the Tribunal that on arrival in his office he found the memo from CC outlining the incident from the previous night. He spoke with TG (general manager) around 8am and decided to wait until after 9.30pm to make contact with the claimant. The claimant telephoned first and said he wanted to discuss what had happened. NB told him he would not discuss it over the phone but to come in and meet the next day, Tuesday 30th. NB checked the CCTV and spoke/got statements from CC and DR
NB and TG met the claimant and asked if he wanted a witness present but he declined. NB said that the claimant’s disciplinary record was not good one and he was advised him from the outset that this was a serious matter that could lead to his dismissal. The claimant insisted he wasn’t late back from his break and said nobody in the company was on his side but when advised that it was his actions that were unacceptable NB thought he nodded his head in acceptance but didn’t actually say anything. He was reminded of the grievance procedures that are in place and of the several instances over the previous years where he could have been/was dismissed. He was asked to return on Thursday 1st August for a decision on the matter.
TG (general manager) told the Tribunal there was no history between the claimant and CC that he was aware of. The claimant was in no doubt that the meeting was disciplinary (he had been through them before) and while he kept reiterating that he was not late TG told him that it was his behaviour that was unacceptable and security had to be called. He was told at the end of the meeting that all CCTV and statements would be gone through and a decision would not be taken lightly. No statement was taken from the claimant but he was given every opportunity to say something in his defence.
The claimant attended on 1st August, he initially declined a witness but then asked TB to attend. He handed over a one line letter of apology and debated his point of view and how he was treated by his supervisor but because of his aggressiveness and the need for the safety of their employees TG told him that the respondent had no option but to dismiss him. TB asked to speak but TG told him it was too late, the decision had been made.
Claimant’s case:
The claimant HA told the Tribunal that he went on his break around 1am on the night in question and returned at 1.48am, he remembered the time on the clock downstairs. He went to the water cooler and heard someone shouting his name, it was CC who was swearing and shouting, saying he would get him sacked and that he was always late. HA said lets go ask DR about the time I went on break and then CC got more angry. The claimant said that CC did not try to find out the truth, he was in his face saying that he was useless and to go home. The claimant didn’t see why he should go home and said no he wasn’t going to do so, that was when security was called. He said that he never poked CC and was in no way threatening towards him.
AH said that he told CC that he would report the matter to NB himself. On his way out of the building he met a colleague who knew what time he went on his break. That is why he returned and told DR who just said he wasn’t taking anymore and to go home. The claimant rang NB early the next morning to make his complaint about the incident and was told to come in the following day.
At the meeting of 29th he was asked if he wanted a witness but declined and began to make his complaint about CC. They pointed out straight away that he was wrong, that he poked and threatened to slap CC. AH said that he told then he never did that, the supervisor attacked him for being late. AH also said that he never seen the witness statements and none of the minutes of the meetings contain anything he said. NB told him to bring a letter of apology the next day, didn’t know why but he did so to see what would happen. AH also said that he asked to see the CCTV on three occasions but was told “no”.
Determination:
The Tribunal found that the evidence given by the witnesses on both sides was unsatisfactory, and has difficulty in drawing a firm conclusion as to the facts. The CCTV footage was also unclear.
We are of the view that the investigation was inadequate. The claimant phoned the manager, NB, to make a complaint about DR and was called to a meeting under the impression that it concerned his complaint. In the event this became part of a disciplinary process against himself. For these reasons we find the dismissal was unfair.
In assessing compensation the Tribunal makes only a modest award, as we found the claimant’s evidence on loss quite unsatisfactory. In particular his failure to claim jobseekers benefit remains unexplained.
We award compensation in the amount of €5,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)