UD1294/2008

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1294/2008

APPEAL(S) OF:

Kayetan Mlynarski

Claimant

against

John Holland & Henry Gillanders t/a Pianos Plus

Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Mr J Flanagan BL

Members: Ms J Winters

                 Ms M Finnerty

heard this appeal at Dublin on 18th March 2009 and 5th May 2009

Representation

Claimant: In person

Respondent: Thomas J Walsh, Solicitors, 1 Mill Lane, Main Street, Castlebar, County Mayo

The determination of the Tribunal was as follows:-

The Tribunal noted at the commencement of the hearing that the claimant was a person for whom English was not his first language. The Tribunal asked the claimant if he required the assistance of an interpreter. The claimant confirmed that he did not and that he wished the hearing to proceed.

Opening Statement

The respondent’s representative stated that fact of dismissal was not in dispute.

The respondent’s representative stated that an altercation had occurred between the claimant and a co-worker (hereinafter referred to as D) at the place of work at a time when the owner (hereinafter referred to as G) had not been present. On arrival at the office, G was informed of the incident in which D had been injured. G went to the hospital with D. Shortly thereafter, G suspended both employees on full pay pending an investigation. G conducted the investigation and all the employees were interviewed individually about the incident. The claimant was allowed an opportunity to give his account of the incident and to be represented at the investigation. The claimant attended the investigation without a representative. The accounts of the incident as given by the other employees were not supplied to the claimant. The account of the incident given by the claimant was not supported by the accounts given by the other employees. Having considered the different accounts, G and his partner (hereinafter referred to as H) decided to dismiss the claimant.

The respondent’s representative made the submission that any defect in the disciplinary process was overridden by the gross misconduct of the claimant.

The claimant stated that his case was one of unfair dismissal. Two people had been involved in the incident but he had been the only one dismissed. D had bashed and beaten him in front of witnesses. The claimant said he had pushed D who fell and broke his arm. The claimant had been blamed as being the aggressor. D had beaten him but he – the claimant – had been the only one punished. The claimant did not understand why he had been punished while D was still employed. The claimant agreed with his dismissal only on the condition that D was also dismissed. However, while agreeing that both of them should have been dismissed, the claimant stated that he had been unfairly dismissed. The claimant stated that written statements of the incident as given by the other employees were not supplied to the claimant in advance of the investigatory interview.

The claimant outlined circumstances indicating the extent of his loss arising from the dismissal. He confirmed that he had failed to secure alternative employment since his dismissal. He had commenced a truck driving course with FÁS in January 2009. He had applied for the driving examination and the only employment he was seeking was that of a driver.

Respondent’s Case

In sworn evidence, G confirmed that the respondent company had been in operation for eighteen years. Its principal business was in the sale of pianos but it was also involved in the hire and tuning of pianos. They operated from a three story building with basement and had eight employees.

The claimant had been employed since September 2005 as a driver and piano mover and had been issued with a contract of employment. He had loaded pianos for delivery to customers and assisted in moving pianos around the showroom.

On 21st August 2008, G arrived in his office at 10.15am. His recollection was that the assistant manager and two employees were present in the office and it appeared that something had happened. G was told that someone had been hurt. D came into the office and related a brief outline of the incident that the claimant had assaulted him. D’s arm was swollen and he was in shock. G did not go into any further detail at that stage as his immediate concern was to get D to hospital. In the hospital, D was diagnosed with a broken wrist and bruising, which indicated broken ribs. D was detained overnight in the hospital and medical certificates were submitted to the respondent in relation to his injures.

The next day, G initially got handwritten statements in relation to the incident from all of the staff (the claimant, D, P, J and S) and all of these statements were signed. G then made the decision to immediately suspend the claimant and D on the grounds of the health and safety of customers and the other staff. Both were suspended by way of letter dated 25th August 2008.

Following the suspensions, the workers who had been in the vicinity of the incident and the office manager, were interviewed by G. He found that their verbal accounts of the incident very much corresponded with their written statements and that certain facts were common in all versions of the statements that were made. The common threads in the statements had been in relation to D’s overtime claim sheets, his blaming the claimant for moving same, the claimant wanting the matter sorted in the basement while D wanting the matter sorted in the office and the ensuing altercation.

The respondent’s representative stated that the decision the respondent made was based, not on whether the claimant or D had the greater guilt in the altercation but on what had been reported to him by the claimant and the other employees. The other employees had reported that it had been an unprovoked assault by the claimant, and the office manager had reported that a second assault on D had occurred in the office. The respondent had formed his conclusion at the end of the investigation process and had come to his decision based on what had been reported to him about the incident by the claimant and the other employees. The claimant had not disputed that an altercation had occurred and had not offered any contrition about his involvement in same. The respondent’s representative submitted that the matter that the Tribunal should adjudicate upon was, not if the incident had been provoked, but on the basis of the information that the respondent had been presented with when making his decision to dismiss.

In reply, the claimant denied he had said that he was not sorry for what he had done but, had said that he had not felt guilty because he had not touched D. He had not started the altercation and D had fallen on the floor. He also stated that the alleged incident in the office never happened.

The claimant was interviewed by G on 22nd September while he and D were still on suspension. The claimant was asked for his version of the incident and G made a written record of his replies. G found that what the claimant said varied from the accounts given by the other employees. From their conversation, the claimant indicated that D had been the aggressor in the altercation. G told the claimant that the accounts given by the other employees had indicated that the claimant had been the aggressor but the claimant disputed the accounts given by the others. G fully explained to the claimant that the injuries sustained by D were long term in nature. What struck G was the claimant’s lack of regret or remorse. His reply had been that he was not sad or guilty for what had happened and he made no attempt to vindicate what had happened. In her oral statement to him, the office manager R spoke about the lunge the claimant had made at D while both had been in the office.

G’s major concern had been the violence on his premises which had resulted in injury. He discussed the incident with his partner, H. Because the claimant had been the culpable one in the altercation, G had taken the decision to dismiss him in order to protect the other employees. He was satisfied that it had been the claimant who had been responsible for the incident. As a small company, it was not possible to relocate the claimant, nor was it possible to have him and D continue to work together. The incident was too serious to only warrant a written warning, and suspension would not have solved the problem of the claimant and D being unable to work together. Because there had been no remorse shown by the claimant, there was no chance of reconciliation and so the respondent believed he was left with no option but to dismiss the claimant.

The claimant was informed of his dismissal by letter dated 7th October 2008. No appeal was made by the claimant against this dismissal decision and the only reply received by G was the claimant’s letter of 20th October 2008.

The claimant had not been shown the written statements that were made by the other employees because G felt that he had not been obliged to give them to the claimant. The other employees had written their account of what they had seen and then G had interviewed them. He had told the claimant what the other employees had said in their statements, and that their statements of the incident were at variance with his account. From the employee’s statements and interviews, G established that D had broken his wrist from a fall onto a metal piano trolley. If D had hit his head in the fall, it was possible that he could have been killed.

In cross-examination, G confirmed that the claimant had been a good worker and he had received positive feed-back from customers about all of the employees. G was asked if tension had existed between the claimant and the other employees. G said that tensions had existed between all of the employees and he had tried to get all employees to work together. However, there had been no major issues between D and the claimant.

D had been employed by the respondent since January 2005. D and the claimant worked in different areas of the business. There had been no previous disciplinary finding against D until his suspension pending the investigation into the altercation.

The respondent’s accountant processed the overtime claim sheets. The respondent had a laissez faire attitude towards overtime claims and trusted the employees to give an accurate account of the overtime that they had worked. When completed, the overtime claim sheets were left in the accountant’s office. However, as the door to the accountant’s office was always open, it was possible for an employee to pick up another employee’s overtime claim sheets. D had previously made complaints about his overtime claim sheets being moved but G had not attributed blame for this to the claimant.

The claimant was dismissed by letter dated 7th October 2008, and in that letter the claimant was given leave to appeal against the dismissal decision within fourteen days. G confirmed that the claimant made no such appeal but by letter dated 20th October 2008, which was the only letter he had received from the claimant, the claimant had agreed with his dismissal. In this letter the claimant stated that “I agree with your decision to fail me but only when the consequences will be the same for [D].I heard that I’m the only one which is dismissed and he continues his employment with [respondent].It is not acceptable for me…I’m not feeling like I suppose paid for someone’s mistake” (sic).

The claimant said to the Tribunal that he only agreed with his dismissal on condition that D was also dismissed. He also said that he thought that his letter would be treated as a notice of appeal.

Preliminary Issue at the Commencement of the Resumed Hearing

At the commencement of the resumed hearing, it was brought to the attention of the Tribunal that the claimant appeared to be accompanied by an interpreter whom he had provided himself. It is normal procedure for any interpreter relied upon by the parties to be appointed by the Tribunal. When questioned by the Tribunal about the presence of this interpreter when, on the first day of the hearing, the claimant had indicated that an interpreter was not necessary, the claimant explained that he had been unsure about all that had been said on the first day and so had felt that he needed the assistance of an interpreter. The claimant had not made application for an interpreter to the Tribunal in the interregnum.

The respondent’s representative said that on the first day of hearing the claimant had indicated that he would not need the assistance of an interpreter and the respondent’s representative said the current attempt to use an interpreter not appointed by the Tribunal was questionable, was an improper way to conduct a case and was very unsatisfactory.

Having considered the matter the Tribunal directed that if he wished, the claimant could have limited assistance from the interpreter whom he had provided for himself. However, the Tribunal refused to permit the claimant’s evidence to be filtered through any person other than a Tribunal appointed interpreter, and the claimant would have to conduct his case and give his evidence through English. The Tribunal would not prevent the interpreter assisting and advising the claimant concerning any clarification that might be necessary, in the usual way that any person representing themselves might do who attends with a friend. Any difficulty that might arise for the claimant in not getting an accurate translation would be a matter for himself as the claimant had refused to opportunity to have the benefit of a Tribunal appointed interpreter. In any event, the claimant had a fair understanding of English.

This direction was accepted by both the claimant and the respondent.

Resumed Hearing

In continued cross-examination, G confirmed that various tensions had existed between all of the staff and that meetings had been conducted to get the employees to concentrate and focus on their jobs. G said that D was not always the person involved in these tensions.

The claimant had not been replaced as a driver, but as the respondent had been working a three-day week for the last two months, part-time people were now being used to cover transport.

In re-examination, G confirmed that there was always tension between the staff and there had been three meetings in relation to this issue.

The meeting that lead to the claimant’s dismissal had been about the incident and about health and safety. The claimant’s dismissal was not a redundancy situation. There had been a gap of time between the claimant’s dismissal and his replacement by part-time staff.

G confirmed that the incident occurred on 21st August 2008 and the suspensions from work happened on the following day, 22nd August 2008. G said that subsequent to his suspension, the claimant was given the opportunity to attend a meeting to defend himself, which was an investigation rather than a disciplinary meeting. Only G interviewed the claimant at this meeting where he took a verbal statement which was later typed for the claimant’s signature. The claimant was not given a copy of the statements of the other employees at this meeting but was told by G that his version of the incident was contrary to the account given by the other employees.

Subsequent to his dismissal, the claimant was given the opportunity to appeal against the dismissal decision by way of the respondent’s letter of 7th October 2008. G had expected the claimant to come with a friend to talk to him in regard to the appeal but the claimant made no appeal. Accordingly, no appeal process was put in place because no appeal was made. Indeed, the claimant had agreed with his dismissal.

In her sworn evidence, R confirmed that the respondent employed her as an assistant manager and on the day of the incident between the claimant and D, she had been working in the office. That morning, D initially came into the office alone and reported that he had been involved in a row with the claimant and he asked that she call the guards. She first asked him to recount what had happened and he said that he had been involved in a row with the claimant who had pushed him onto a trolley, that he had hurt his hand and was in shock. At this juncture, the claimant came in to the office where he and D started arguing and interrupting each other and R could not get to talk to either of them. R witnessed the claimant lunge at D while both were in the office and it was clear to her that D was in severe pain. Apart from that, R did not witness D being violent or attacking the claimant but she did witness D having to defend himself from the claimant. She did not hear D say or do anything that would give rise to the actions of the claimant. She contacted G who arrived and took D to the hospital.

In cross-examination, R stated that she did not know why the claimant had tried to hit D while in the office. Neither of them had been calm. Both had been excited about what had happened and had been talking angrily, trying to decide who had been in the wrong. It was put to her by the claimant that D had hit the claimant.

In re-examination, R confirmed that she had not seen any evidence of injury on the claimant’s face or head.

In his sworn evidence, J explained that on the day of the incident, he had been in the showroom while the claimant and D were in the Recital Room where the pianos are assembled. Both of these areas are on the same floor of the respondent’s business. J recalled hearing a verbal argument between the claimant and D where the claimant was swearing and “fighting with words”. Both came out of the Recital Room and were speaking loudly and swearing. Near the lift, J saw the claimant push D into the Recital Room. Because of his location, J did not see D make any physical attack on the claimant. However, he was in no doubt that it had been the claimant who had started the violence.

In cross-examination, J confirmed that the claimant had started the row with D by pushing him. There was only one push from which D fell back into the Recital Room.

J could not recall a mention of a baseball bat but understood that by going to the basement, the claimant and D were going there to fight. He could not remember who had mentioned fighting.

In his re-examination, J confirmed that the claimant was the first person he had seen pushing and that D had wanted to go to the office following the incident while the claimant had wanted to go to the basement.

In his sworn evidence, D confirmed that the respondent had employed him for three and a half years as a piano technician. On his return to work after a holiday, D discovered a problem with his time-sheets. Before going on holidays, he had left his overtime time-sheets on the accountant’s desk but on his return he found only the claimant’s time-sheets on the desk. When he enquired where his time-sheets were, he was told that he should ask the guys what they had done with them. D went from the office to the Recital Room where the claimant, P and S were preparing a grand piano. He asked the claimant about his overtime time-sheets and told him that he was again having problems with his things. As things got aggressive, D said that they should go to G’s office because too many things had been happening. The claimant said that they should go and talk “man to man” and D had agreed. However, in the lift bay, the claimant had opened the door to the basement instead of to the office upstairs. When the claimant had indicated that they should go to the basement, D asked why and the claimant said that he wanted to fight with D. The claimant then stepped forward and pushed D on the chest. D next found himself on the trolley, short of breath and the claimant on top of him. He went to the office where he told R what had happened and that he wanted the Gardaí called. When the claimant came in to the office, he claimed that D had punched him in the face and he looked for blood on himself. D accused him of being a good actor. When D said that they must wait and tell G what had happened, the claimant had replied that he had a job to do and he ran away.

D confirmed that there was no blood on the claimant. The argument had started with words but it was the claimant who had started the physical violence by pushing D. D said that it was only while lying on the trolley, where he had fallen, that he had used force, as it had been necessary to defend himself because the claimant was still attacking him. This was the only time that D was physical with the claimant because, by this time, he was in a lot of pain. D explained that resulting from the incident with the claimant, he had sustained swelling, two broken bones and his hand in a splint. He was out of work for a few months and returned initially on a short-time basis.

In cross-examination, D confirmed that he did not hit the claimant in the face. However, when put to him that his typed statement stated therein that “[the claimant] made to punch me again I blocked with my left hand and I pushed/hit him with my hand on his face”, D explained that this probably meant that his open hand had hit the claimant when he went to block the claimant hitting him and this was probably why the claimant had actually stopped hitting him.

In his re-examination, D confirmed again that he had not acted aggressively towards the claimant.

In his sworn evidence, P explained that he had been in the Recital Room with the claimant and S assembling a grand piano for a customer on the day of the incident. He recalled D entering the Recital Room about a half hour after they had started work. D spoke to the claimant and asked him what had happened to the overtime sheets that he had left on the desk in the accounts office. D and the claimant then left the Recital Room and went into the corridor where there was access to the lift. D said he wanted to go up one floor to the office to talk to R or G about the overtime sheets but the claimant had said that he wanted to go down to the basement to deal with the problem in a different way rather than deal with it with the boss and other witnesses. P explained that going to the basement probably meant solving the problem in a different way to talking. He understood it to mean “to fight”. Within seconds of leaving, raised voices were heard and he saw D being pushed back into the Recital Room by the claimant. The claimant caught D in a head-lock and put him to the ground where he landed on a metal trolley. Everything happened very quickly. D managed to get free of the claimant, pushed him away and then went upstairs to the office. P had no doubt that it was the claimant who was the aggressor in the incident. D was the one who had wanted to go to the office to deal with the problem. The only time that D had shown aggression was, while lying on the ground trying to get up, he had tried to defend himself and had pushed the claimant away from him.

Replying to the Tribunal, the respondent’s representative confirmed that the incident had been reported to the Gardaí.

In cross-examination, P confirmed that going to the basement to fight had never happened before. When asked to explain his understanding that going to the basement was going there to fight, he said that previously when P had a situation with the claimant, the claimant had threatened to take him to the park to fight like men. He confirmed again that he had seen the claimant take D in a head-lock, which the claimant denied.

When put to P that there were differences in the written statement and verbal statement made by him in relation to the incident, P explained that it is simply the case that there was more detail in his second statement. He denied that there was a difference in the wording that D “hit” and “pushed” the claimant and said that D had acted in self-defence.

Claimant’s Case

In his sworn evidence, the claimant stated that D came to where he was working and asked about lost time-sheets. Both had started to talk and D had said that it was the claimant’s fault that his overtime had been lost. D had wanted to go to G’s office to clarify the matter but the claimant had said that they would clarify the matter in the basement, which was empty. In the empty basement with no one around, D would not get excited. However, D had replied that the only way he would go to the basement was with a baseball bat. At this juncture, D caught the claimant by his shirt and hurt him as he pushed him towards the lift. This surprised that claimant who pushed D towards an empty room where D fell down. The claimant did not try to punch or hit D and stated that he had nothing to do with D’s lost overtime sheets.

Following his fall, D had run up to R’s office while the claimant went to the toilet to clean blood off his nose. He then went to the office where he heard D ask that the Gardaí be called. He made a lunge at D to show D how fast he was but he did not try to hit D. The claimant then left the premises before G arrived, which he now accepted was a mistake on his part.

In cross-examination, it was put to the claimant that in his letter of 20th October 2008 to G, he had accepted the respondent’s decision to dismiss him. In reply, the claimant stated that he was not good at English, and that his letter had been a mistake and had not been written properly. Obviously he did not agree that his dismissal was fair or that he accepted it. He did however confirm that if D had also been dismissed, his own dismissal would have been fair and okay.

Though D had attacked and hurt him, the claimant had not made a complaint to the Gardaí, but he had complained to the respondent. He claimed that he had not been given the opportunity to examine the statements collected by the respondent concerning the incident.

The claimant admitted that he had invited D to the basement to sort out all their issues “face to face” and “man to man”. He had wanted to be on his own with D because D was always getting excited when he was around witnesses. They had worked outside of the office for eight hours each day so the claimant wanted to sort out things outside of the office.

The claimant denied that he had hit D or held him in a head-lock but had held him in a squeeze around his body. He accepted the medical report and photographs of D’s injuries and that because of his injuries, D had been off work for a while. The claimant also accepted that he had received six weeks pay while on suspension.

Closing Statement

The respondent’s representative stated that while the Tribunal may be unhappy with some of the procedures adopted by the respondent when terminating the claimant’s employment contract, it was nonetheless reasonable to terminate that contract. The claimant’s conduct was so gross that it should outweigh any defects in procedures. Furthermore, if the Tribunal found that the claimant was unfairly dismissed, it should also hold that his conduct contributed one hundred percent to his dismissal and therefore he had no entitlement to compensation.

The claimant declined the opportunity to make a closing statement.

Determination

In Glover v BLN Ltd. [1973] IR 425, Walsh J for the Supreme Court stated that “… the dictates of constitutional justice required that statutes, regulations or agreements setting up machinery for the taking of decisions which may affect rights or impose liabilities should be construed as providing for fair procedures”.

In Mooney v An Post the Supreme Court, unreported, 20th March 1997, Barrington J (nem diss) that “Dismissal from one’s employment for alleged misconduct with possible loss of pension rights and damage to one’s good name, may, in modern society, be disastrous for any citizen. These are circumstances in which any citizen, however humble, may be entitled to the protection of Constitutional and Natural justice.”

In reaching its conclusion, the Tribunal relies upon, and thereby upholds, the principle that all employees are entitled to the protection of the constitutional right to fair procedures in respect of a decision made by the employer to terminate the employment of an employee for misconduct. The contract of employment which subsisted between the parties is an agreement which created the entitlement of employer to terminate the employment for misconduct, and the decision to terminate a person’s employment is one which can affect an employee’s rights, including the right to a good name.

The claimant was dismissed for what were disciplinary reasons and the Tribunal maintains the standard position that an employee, however badly behaved, is entitled to fair procedures. These procedures include providing the employee with a fair hearing prior to any disciplinary sanction being administered. The respondent made the decision to terminate the claimant’s employment at the end of an investigation which included an interview with the claimant. It was common case that there was no disciplinary hearing but merely an investigatory interview. It is usually a simple matter to distinguish between a hearing and an investigation. The interview lacked a number of the characteristics of a disciplinary hearing and the Tribunal explicitly makes a finding of fact that no disciplinary hearing occurred.

The Tribunal upholds the usual standards expected of employers and does not accept that an interview of the employee conducted as part of the investigation is an acceptable substitute for a disciplinary hearing. The respondent failed to provide the claimant with the opportunity to defend himself at a disciplinary hearing and the absence of a disciplinary hearing is a fatal flaw in any disciplinary process. An employer is obliged to ensure that the disciplinary process is fair and the failure of the employee to utilise an internal appeals procedure where one was made available to the employee does not remedy or excuse any breach of fair procedures.

The Tribunal notes the unusual position adopted by the claimant in agreeing that his dismissal would be fair if his co-worker, D, had also been dismissed. The Tribunal quotes the following statement of the claimant from his Form T1A “I feel it was unfair that I was dismissed and my colleague was kept in employment”. The Tribunal does not accept that these statements can in any way be relied upon to remedy the failure of the employer to provide fair procedures. Although an employee may, in limited circumstances, waive an entitlement to certain privileges usually characteristic of a fair hearing and thereby allow an employer conduct a hearing which would otherwise be unfair, the statement of this claimant is one seeking an equality of outcome for his co-worker, and the Tribunal finds it was not a waiver of any right or privilege.

The Tribunal finds that the dismissal of the claimant was procedurally unfair and therefore the dismissal was an unfair dismissal.

The essentials of the factual matrix as found by the Tribunal are as follows; the claimant was involved in a verbal dispute with a co-worker, D, and this incident escalated into a violent dispute. The Tribunal has had the opportunity to see for itself both the claimant, who is a well built, even burly, younger male who was employed to move pianos and the co-worker, D, who is an older, slightly built and relatively frail gentleman who was employed as a piano tuner. The Tribunal accepts the evidence of D which is that he had found his overtime sheets had been moved from where they were left in the accountant’s office. It is clear that D suspected that the claimant had moved the sheets; presumably either to delay payment of overtime to D or oblige D to fill them out again or otherwise make a nuisance of himself to D. Acting on this suspicion, D confronted the claimant verbally and in a manner which began acceptably. The tone of the conversation turned aggressive. D took the correct course and asked the claimant to go with him upstairs to the office to discuss the matter with R and G. They walked towards the lift and it was there that the claimant asked D to go to the basement instead. The claimant admits that he invited D to go to the basement which he says was to talk. The Tribunal does not accept this explanation and is of the view that the claimant invited D to the basement for the purpose of threatening violence to D. When D did not go with the claimant to the basement the claimant immediately launched a wholly unjustified physical attack upon D which resulted in D suffering a fractured left wrist, bruising to the chest and suspected fracturing of the ribs. D was knocked to the ground and was shocked and winded. The Tribunal accepts the account given by D, which is substantially supported by the independent witnesses, and finds that the claimant is an untruthful witness who has deliberately misrepresented the facts. Shortly after the incident in which D was injured, D went into the office and met with R for the purpose of reporting the matter. The claimant followed into the office and lunged in a menacing manner at D and was seen to do so by R and D. The Tribunal notes that the claimant admits lunging at D in the office and the Tribunal does not accept the claimant’s explanation, (that he made the lunge merely to demonstrate to R that he was fast enough to hit D) an explanation which the Tribunal considers to be both bizarre and incredible.

The Tribunal considers the claimant to be a belligerent individual whose behaviour was wholly unacceptable in the workplace. The Tribunal notes that D asked that the Gardaí be contacted and the Tribunal is fully satisfied that the nature of the claimant’s action was such as to merit reporting the incident to the police for investigation.

The Tribunal determines that the claimant was unfairly dismissed under the Unfair Dismissals Acts, 1977 to 2007 and finds that the claimant’s contribution to his own dismissal is such that the appropriate remedy is an award of compensation in a nil sum.

The Tribunal wishes specifically to record in its determination that the claimant has at no stage evidenced any shame or guilt at his behaviour and has not apologised to the injured employee. In his signed statement to his employer the claimant states “I am not feeling guilty that he has a broken arm – he started it.”

At the outset of the case, the Tribunal warned the claimant that it had the power to make an award of costs against the claimant if it found the claim to frivolous or vexatious. Having heard the case in full, the Tribunal does not consider it appropriate to make a finding that the case was either frivolous or vexatious. Despite the many and severe demerits of the claimant’s case and the decision to award a nil sum in compensation, the claimant has obtained a finding that the decision to terminate his employment was unfair procedurally and the Tribunal is of the view that is sufficient of itself to justify bringing the claim against the employer such that the claim could not be said to be merely frivolous or vexatious.

The respondent sought to justify the dismissal of the claimant without a disciplinary hearing by reference to the misconduct of the claimant and also to the employer’s duty to provide a safe workplace.

The Tribunal has considered the Unfair Dismissals Acts, 1977 to 2007 at section 6 which states:

“(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

The Tribunal holds that an employer may not rely upon sub-subsection 6(4)(b) and subsection 6(6) of the Unfair Dismissals Acts, 1977 to 2007 to the exclusion of the constitutional right to fair procedures. The Tribunal accepts that the respondent employer did succeed in showing that the dismissal resulted wholly or mainly from the misconduct of the employee per subsection 6(6) of the Unfair Dismissals Acts. On the other hand, the Tribunal finds that the contract of employment is an agreement between the parties which either expressly or impliedly sets up a procedure for the termination of an employee’s employment and this procedure affects the employee’s rights and therefore should be construed as providing for fair procedures per the Supreme Court in Glover v BLN Ltd. [1973] IR 425.

Subsection 6(4) of the Unfair Dismissals Acts, 1977 to 2007 is expressed to be “Without prejudice to the generality of subsection (1) of this section …” and subsection (1) itself provides that “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” The Tribunal therefore holds that the misconduct of an employee, however obvious and grave that misconduct may be, is not a substantial ground justifying dismissal in circumstances where the constitutional rights to fair procedures are not vindicated by the employer.

This: ________________________

Signed: ________________________

(CHAIRMAN)