EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Jose Cicero Da Silva UD141/2013
- Claimant
Against
Liffey Meats (Cavan) T/A Liffey Meats
- Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M.McAveety
Members: Mr. T.O’Sullivan
Mr. O. Nulty
heard this claim at Cavan 6th January 2015
Representation:
Claimant: Dara, Murtagh, Dara Murtagh, Solicitors, Main Street, Kingscourt, Co. Cavan
Respondent: Mallon, Solicitors, Glencarn Centre, Castlsblaney, Co. Monaghan
Respondent’s case:
The respondent company is a beef rendering plant. Various stages of production are done in boning halls and heavy equipment, saws and knives are part of the process before preparation for packaging.
AF the production manager told the Tribunal of an incident that was reported to him on Wednesday 10th October. He received a phone call from the supervisor saying that T had gone to first aid because he had been struck on the back of his neck by a cut of meat weighing 5/6 kilos. T appeared shaken and said the claimant had thrown it at him.
AF didn’t talk to the claimant until break time because of the amount of staff in the area, all working with knives and saws. When he called the claimant to his office he didn’t deny the incident but said that T was too slow on the production line. AF told him that he was suspended until the end of the week, he had caused a dangerous situation and had obstructed people on the floor while they were working. AF was very sure that the claimant had understood what he was being told.
The following Friday AF attended work early. He was in the loading bay marking carcasses for customers when he was jabbed from behind with a steel being held by the claimant. AF fell down between the rack and the carcasses, the claimant stood over him swinging the steel and AF was sure that the claimant was trying to strike him with it. Another member of staff F arrived and tried to pull the claimant away. When AF got back to his feet they managed to control the claimant and he was taken away from the situation.
Under cross examination AF denied that the claimant had just touched him on the elbow. He said there were prior issues with the claimant taking uncertified leave (mainly Mondays) AF said that while English was not the claimant’s first language he knew what was being said. AF also denied ever laying a hand on the claimant during a previous discussion and while the claimant continued to work on the day he was suspended (10th October) he, the claimant, knew for sure he was suspended and that he wasn’t getting paid.
T gave evidence as to the incident when he was hit by a cut of meat. It struck him on the back of his neck. He asked the claimant what he was doing and was told by the claimant to “hurry up”. T then called the supervisor and was taken to first aid. He was out sick for a few days following the incident but didn’t take the matter any further as the claimant later apologised and they moved on. Asked if he had any contact before the Tribunal hearing, he said that the claimant had called to his flat and asked him not to attend. His employer asked him to be at the hearing, he didn’t really want to be there but felt obliged to attend.
JP the production manager gave evidence as to what he had seen happening on the Friday 19th. He said the claimant went down the opposite way to where his work station was. He heard a noise and seen AF fall. He went towards the incident and seen F grabbing the claimant to pull him away. The claimant looked like he was out of control and was waving his steel in a threating manner. After the claimant was taken to the office JP escorted him to the changing room and then off the premises.
F told the Tribunal that he did not see the incident, just AF on the floor. He took the claimant away and told him to go home, relax and calm down. He later translated for the claimant at the disciplinary meeting which was held at 5pm.
Mr M, C.E.O. said that the claimant approached him about the non-payment of wages from the previous week. He told him to go and speak with AF. He did not hear any conversation but seen AF on the ground, F intervening and then taking the claimant to the changing room.
F advised the claimant to go home and calm down and it was agreed he return at 5pm. He was not present at the 5pm meeting but wrote the official letter which summarily dismissed the claimant.
DD Finance Director said that he was asked to chair the investigative meeting at 5pm on Friday 19th. The claimant remained protracted and uncooperative throughout. There was a lot of shoulder shrugging and F did his best to help with translation but DD was in no doubt but that the claimant was fully aware of the seriousness of the situation. Others were interviewed and DD reported his findings back to Mr M.
Claimant’s case:
The claimant told the Tribunal (with the aid of an interpreter) that he did miss a day at work but asked a colleague to let the company know. The next day he was asked for a doctor’s note but did not have one because he had not attended a doctor, he was suspended by AF as a result.
The incident with Mr T in the boning hall happened because two people were supposed to be accepting the meat and neither one was claiming a large piece, it was getting pushed around and eventually fell on the floor. The claimant had to get down, put it on a hook and threw it in Mr T’s direction, saying “its yours”. It didn’t hit him, just slightly touched his chest, he became stressed, called the supervisor and said he was going home. AF and his manager told him to go to the doctor and Gardai. The claimant was told to go home as well as he was suspended but he felt he hadn’t done anything wrong. He was not paid for the three days and was given no leave to appeal.
The claimant said that he went to talk with Mr M regarding the non-payment of the three days in his wages. Mr M said go and talk to AF and turned his back on him. When he located AF he touched his shoulder and AF threw himself on the floor. The claimant was carrying his tools and not waving them at anybody. He was not aggressive, just told AF to get up. F did not have to restrain him. The claimant gave evidence of loss.
Determination:
The Tribunal, having heard the evidence adduced, determines that on the balance of probability the respondent’s evidence to be more credible. It is satisfied that the respondent’s decision to dismiss the claimant on grounds that his conduct constituted gross misconduct was reasonable in the circumstances.
Accordingly, the Tribunal finds that the dismissal was not unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)