EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD628/2013
MN324/2013
.CLAIM OF:
Urszula Jaroszewska
against
Keelings Softfruits
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr C. Lucey
Mr P. Trehy
heard this claim at Dublin on 30th April 2014, 5th March 2015 and 6th March 2015
Representation:
Claimant:
Mr Eamonn O'Hanrahan, O'Hanrahan & Company, Solicitors,
Lexington House, 71 Ballybough Road, Fairview, Dublin 3
Respondent:
Mr. Eamonn McCoy, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Respondent’s case:
Mr McCoy confirmed on behalf of the respondent that the correct name of the respondent is Keelings Softfruits and is an unlimited company.
The respondent is a fruit and vegetable producer and wholesaler where the claimant was employed as a general operative from 13th June 2006 until her dismissal on 15th March 2013. At the time of her dismissal the claimant was earning €9.35 per hour and worked 39 hours per week.
The Glass House Manager (BOS) gave evidence in respect of the investigation he carried out into an incident on 14th December 2012 whereby it was alleged by a colleague of the claimant that she had been physically assaulted by the claimant. From the outset it was clear that there had been an altercation between the claimant and her accuser and therefore BOS suspended both of them with pay, pending the outcome of his investigation. BOS took statements from the person alleged to have been assaulted and the claimant together with witnesses to the incident, including the claimant’s husband who is a supervisor in the same area as the claimant. Although there were some notable differences in the version of events reported by witnesses BOS was satisfied at the conclusion of his investigation that there had been inappropriate behaviour by the claimant, which merited a referral onwards to the disciplinary process. BOS had no further involvement in the process after this.
A disciplinary hearing was conducted by JK, who is a Grower Manager for the respondent over the last ten years. JK reviewed all the notes taken during the investigation and meetings and went from there.
JK was satisfied that there had been an altercation between the claimant and a colleague and that the claimant had pushed her colleague during this altercation. The claimant had been asked to describe the level of the push on a scale of 1-10 and had described it as a 6. JK referred to the company handbook and found that this constituted gross misconduct and felt that the appropriate sanction was dismissal. No other sanctions were considered despite the claimants prior good record and work history No consideration was given to the fact that the claimant had returned from maternity leave as recently as October 2012 as this was never raised by the claimant at the time as a mitigating factor..
It was accepted by the respondent that the claimant’s colleague provoked her prior to the incident and as a result the claimant’s colleague received a written warning. JK was aware that there had been difficulties between the claimant and her colleague in the recent past but there had been no written complaint by the claimant prior to the incident that led to her dismissal.
The claimant appealed the decision to dismiss her and the appeal was heard by the head of H.R. (MB). MB upheld the decision to dismiss the claimant.
Claimant’s case:
The claimant commenced work with the respondent on 13th June 2006 and had a clear record up to the incident that led to her dismissal. The claimant described how there had been difficulties between herself and a colleague for some time before the incident of 14th December 2012. The claimant had complained to her husband, who was a supervisor in the same area of the company, of how she was being treated at work by this colleague and this colleague’s sister and another staff member. The claimant’s husband brought this to the attention of JK but did not put anything in writing.
It was the claimant’s position that had the company acted upon her complaint in the first instance things would not have gotten to the stage whereby the incident of 14th December 2012 occurred. It was also the claimant’s contention that the push on her colleague was not an assault or fighting and therefore should not have been considered as gross misconduct. The claimant did not agree with the notes of the disciplinary meeting and said that they were mostly lies. Furthermore the claimant also told the Tribunal that she had raised the issue of her recent return from maternity leave as mitigation of her actions.
It was the claimant’s position that dismissal was unreasonable and too severe a sanction in the circumstances given her unblemished record and length of service.
Determination
The Tribunal considered the evidence of both parties carefully. This is a case where the proportionality of the sanction is at issue as it is accepted by the claimant that she pushed her colleague albeit not to the level contended by the respondent. JK, on behalf of the respondent and whose decision was upheld on appeal by MB, referred to the company handbook and gave evidence that violence of this nature amounts to gross misconduct which warrants a sanction of dismissal. The Tribunal reviewed the terms of the handbook which provides as follows
Dismissal may result from
· Failure to achieve standards agreed from a previous final written warning
· Repetition of a serious offence or breach of conduct
· Any act of serious/gross misconduct (See definition)
If an employee is guilty of serious/gross misconduct he/she may incur
· Suspension from duty without pay
· Demotion/relocation
· Dismissal
· Combination of the above depending on the gravity of the situation.
It is clear from the handbook that having decided that the claimant’s actions amounted to gross misconduct that there were still alternative options available to JK and MB (on appeal) in terms of the sanction available. Both gave evidence that they did not consider alternative sanctions. This is unusual in circumstances where AM, who everyone agrees provoked the claimant, only received a written warning following the incident. Evidence was given by MB that the respondent has 2,500 employees therefore it would seem that relocation and/or demotion could have been considered. Alternatively, suspension without pay could have been considered.
In all of the circumstances the Tribunal believe that the claimant was unfairly dismissed in that the sanction imposed by the respondent was disproportionate. The Tribunal also believe that the claimant contributed significantly to her own dismissal by her actions. Having considered the evidence of the claimant in relation to alternative work the Tribunal awards the claimant a reduced award of €9,500.00. The claim for minimum notice is dismissed as the claimant was in receipt of illness benefit at the time of dismissal.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)