EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD388/2014
CLAIM OF:
Edward Hanlon - claimant
Against
Smurfit Kappa Ireland Limited T/A Smurfit Kappa Dublin - respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Ms A. Gaule
Mr T. Brady
heard this claim at Dublin on 15th April 2015, 16th June 2015 and 17th June 2015
Representation:
Claimant: Mr. Vernon Hegarty, SIPTU, Liberty Hall, Dublin 1
Respondent: Ms Lorna Lynch BL instructed by Mr Kieran Johnston, MacCarthy Johnston, Solicitors, 37 Fitzwilliam Place, Dublin 2
Respondent’s Case
The respondent is a leading provider of paper-based packaging solutions in the world.
The claimant was employed as a general operative by the respondent company and commenced employment on 25 May 2007 and worked in the despatch area.
On 23 May 2013, while SMcK was attending a meeting, the claimant’s brother J stormed into his office and asked him to get down to the factory floor where an altercation had occurred. The witness asked J to calm down as he was quite emotional and asked him to give him a statement that evening when he was due to report for work. When the witness visited the factory floor he did not see anything untoward and duly returned to his work.
The following day G informed him that the claimant and his brother did not report for duty. He made contact with the claimant but the claimant refused to speak with him and said he wanted to speak to P.
On instruction from CT (General Manager) the witness was tasked with taking statements from the witnesses and participants involved in the incident. It was a fact finding exercise. It became evident that the claimant and his brother J, also an employee approached a fellow employee and senior shop steward known as JMcG at the post gluing machine where JMcG worked and an altercation/argument occurred over a union matter. This was a strong verbal confrontation.
The witness wrote to the claimant and his brother J on 29 May 2013 concerning the incident that occurred on Thursday, 23 May 2013 and indicated that he wished to take statements from them about what had occurred. He wanted to hear the claimant’s version of events of the incident in question. He stated in that letter that the outcome of the investigation could result in disciplinary action being taken by the respondent up to and including dismissal as per the company’s disciplinary procedures.
On 5th June 2013 the witness met with both the claimant and J separately to hear their version of events that day. Their union representative attended with each of them. They had both arrived with pre-prepared statements to the meeting and further statements were taken by SKMc. Both the claimant and J complained about JMcG’s aggressive behaviour on the morning in question and JMcG in turn complained about both the claimant’s and J’s behaviour. When all the statements had been taken the witness passed these to BO’N Quality Manager.
BO’N conducted a formal investigation. His investigation proceeded on the basis that it was a company investigation of an incident rather than an investigation of a complaint against an employee. He wrote to the claimant and J on 14th June 2013 and enclosed witnesses’ statements together with the claimant’s own statement and a statement given by J. He asked the claimant to review the statements and revert to him within seven days with any comments he might have on them. He outlined that he might need to interview him again and that the outcome of his investigation could result in disciplinary action being taken against him up to and including dismissal.
The witness met the claimant on 5th July 2013. During the course of the meeting the claimant said he had not pre arranged to meet JMcG on the morning of 23rd May 2013. He was following up on a meeting he had with JMcG on the Tuesday. He needed clarification on issues to be discussed at a meeting on the Friday. He said he was verbally abused by JMcG on that morning. Derogatory language was used. The claimant asked BON to take a statement from JM.
BON concluded his investigation on 23rd July 2013. In his view a serious argument had occurred which was inappropriate in the workplace and it centred largely on union business. It was clear to the witness that JMcG had attempted to disengage from the argument on a number of occasions but both the claimant and J continued to engage. However, the witness did not receive any formal written complaints from any of the parties involved. He believed disciplinary action should be considered against the claimant and J and passed his report to CT, General Manager.
CT gave evidence. He conducted a disciplinary hearing which commenced on 27 July 2013.
The claimant was provided with copies of all the statements taken and was given the opportunity to cross examine the witnesses. In that regard details of copies of the disciplinary hearing communications were opened to the Tribunal. The disciplinary hearing culminated by way of a meeting held on 3 October 2013 where the witness informed the claimant and his representative that dismissal was the most appropriate sanction. The claimant was offered a right of appeal.
In reaching this decision the witness had taken into account the fact that the claimant had been involved in a similar verbal altercation with JMcG in May 2012, and as a result he was advised in writing by his operations manager that this type of behaviour was unacceptable and any further incidents of that nature would result in disciplinary action. He was subsequently issued with a written warning in November 2012 for serious misconduct following an incident where he was inappropriately aggressive towards his operations manager. This written warning confirmed that any future similar instances may lead to further disciplinary action being taken against him, up to and including immediate dismissal. The incident on 23 May 2013 was the third incident over a 12 months period. The company has a duty of care to all employees and the witness believed that dismissal was the appropriate sanction in the circumstances.
SS, Manager of the Cork plant gave evidence. He was asked to conduct the claimant’s appeal hearing. The claimant gave an overview of the incident that occurred on the Friday night (17th May 2013) and explained that it was a health & safety issue rather than working with a temporary worker. It was felt that JMcG misunderstood what had happened on 17th May 2013 and that this was perhaps a reason for his aggressive behaviour when confronted by the claimant and J on the day of the incident, 23rd May 2013. His union representative felt that the claimant should be restored to his position in the company.
Following the appeal hearing SS reviewed all the documents and believed that the finding of serious misconduct was justified. He dismissed the claimant’s appeal and notified the claimant accordingly by letter dated 18th December 2013.
Claimant’s Case:
The claimant commenced employment on 25 May 2007 and was a good member of the Despatch Team. It was a two man Team.
On 17th May 2013 a problem arose concerning the cleaning up of the area where he worked. N arrived to the area with a temporary worker D. Other full time staff had expressed interest in working in the despatch area. There was also a health and safety issue with a forklift driver working in the area while the clean up was to be carried out. The company had a zero tolerance policy concerning health and safety in the workplace. He told N that he would have to work under protest.
Both the claimant and J spoke to JMcG on Tuesday, 21st May 2013 about certain issues they had. The election of a night shift union representative was ongoing. They often stopped at JMcG’s workstation to discuss issues with him. Having finished their shift on the morning of Thursday, 23 May 2013 they stopped at JMcG work station just to say hello and to touch base with him. They wanted to confirm who was to be the representative for the night shift and clarify some issues to be discussed at the union meeting scheduled for the next day. A tirade of abuse then ensued towards both the claimant and J. They did not walk away as they had a right to know why they were greeted in such a way. They in turned used aggressive behaviour. However, the claimant admitted that his conduct was unacceptable in the workplace and that it was an unsavoury incident. After a short while he left the workplace and sat in his car for approximately fifteen minutes. He contacted G that night and told him about the incident. It was a stressful situation. He did not feel comfortable returning to work the following day. He wanted to have a meeting with CT.
He left a message with the Security guard the next morning and asked that P email him. He was then made aware that SMcK was investigating the matter and this was confirmed by letter dated 29th May 2013 from SMcK.
That meeting took place on 5th June 2013 and he read out a pre-prepared statement. Other statements from witnesses had already been taken.
The witness said he never lied to JMcG and that JMcG had raised the contentious issue.
In the previous year he received both a verbal warning and a written warning.
The claimant told the Tribunal that he believed his actions were inappropriate on the day but he felt his dismissal from the company was unbalanced.
Since the termination of his employment the claimant was not available for work until October/November 2014. He then secured alternative work at a significantly lower salary than he had with the respondent company.
The claimant’s brother J gave evidence. He too recalled the Friday, 17 May 2013 incident in which a member of staff wanted to operate a forklift truck while the despatch area was being cleaned up. This was a health and safety issue and this was communicated to N on the night in question. As a result the area was not cleaned. N had told the claimant to speak to JMcG about the issue. Both he and the claimant had no issue working with a temporary worker and explained this to G & N. They were two contentious issues one being the clean up issue and the other being that a full time staff member wanted to work in the despatch area. Both the witness and the claimant spoke to JMcG about these on 21 May 2013. In the seven years the witness had worked in the company there had been a lot of issues. JMcG told him that he would speak to AC the following day. As the witness did not see JMcG the next day both he and the claimant stopped by JMcG’s work station on Thursday, 23 May 2013 and were immediately verbally abused by him. Management had informed JMcG that they had refused to work with a temporary member of staff but neither the claimant nor the witness had given this version to JMcG.
The witness felt JMcG degraded him. He was in disarray. It was JMcG who flared up when they arrived at his work station. JMcG kept saying you told me lies. Neither the witness nor the claimant had any problem working with a temporary worker. JMcG was roaring at them and J became very nervous and emotional. The witness never lodged a written complaint with the company.
Determination:
The Tribunal finds in all the circumstances that the dismissal of the claimant was not unfair.
The claimant had a written warning on file for verbal aggression, unlike his brother, and this provided the valid distinguishing factor in their treatment by the respondent employer, justifying the fact that the claimant’s brother was not dismissed for his actions.
While the procedure by the respondent was not as clear in relation to the stages of the investigation of the incident as it might have been, the claimant was properly represented, adequately notified and provided with fair procedures at every stage of the procedure.
Whatever the background to the incident on the factory floor involving the claimant, his brother and JMcG, the important factors in relation to this are that the claimant and his brother had finished their shift and were free to leave while JMcG was working and had to stay at the machine he was working on. In addition, the consistent evidence showed that JMcG repeatedly asked the claimant and his brother to go away, even walking physically away from them at one stage. Despite this, the claimant and his brother insisted on confronting JMcG and the incident became abusive. It is unfortunate that two employees, the claimant and his brother, apparently so concerned to comply with the zero tolerance approach to health and safety that they had issues with directions of their mangers the previous week, were now insistent on the escalation of a conflict on the factory floor.
All employees have the right to work in a safe environment and employers must do their best to ensure that right. In circumstances where employees are working in an industrial environment with heavy machinery operating at great speeds, it is within the band of reasonableness for an employer to terminate the employment of an employee who has finished work, who has a warning on file and refuses to disengage with an employee at work where an abusive incident occurs of the type that happened in this case.
The claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)