UD169/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                          CASE NO.

Joe Cooper

- claimant                                                                                                                 UD169/2014

against

Johnston Mooney & O'Brien Bakeries

- respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr C. Corcoran B.L.

Members:     Mr D.  Peakin

                     Mr. J.  Dorney

heard this claim at Dublin on 29th April 2015

Representation:

_______________

Claimant(s) :        Mr Joe Leddy, 73 Willow Wood Grove, Clonsilla, Dublin 15

Respondent(s) :    Mr Peter McInnes, McInnes Dunne, Solicitors, Lower Ground Floor, 78  

                             Merrion Square South, Dublin 2

Respondent’s Case

The Tribunal heard evidence from (AD) that he is employed as a general worker by the respondent company for the past 8 years. He gave evidence that he was working on the factory floor on the night of 13 October 2013. He had an old air hose in his hand. This was described to the Tribunal as an uncontrolled hose (i.e. a hose without an air controller). It was accepted by both parties that this hose should not have been in use for health & safety reasons. He gave evidence that as he was holding the hose the claimant approached him and tried to take the hose from him. He (the claimant) told him that it was unsafe to use the hose. A tug of war then ensued and he informed the claimant that he would put the hose in an employee’s (Tomasz) locker. The claimant would not allow him to do this and pushed him against the wall. (B), a manager then intervened in the altercation and took the hose.

The witness gave evidence that as he was walking away to put the air hose in a locker the claimant returned, hit him and jumped on him. He (the witness) then woke up on the ground after losing consciousness. He told the Tribunal that there was about one minute between both incidents. He accepted that he had called the claimant a bad boy and lazy during the altercation. When he regained consciousness he returned to the workplace and carried out his duties. He met with the claimant later during his shift and asked him was he happy after the incident. He told the Tribunal that the claimant responded by raising his two thumbs.

He was asked to provide a statement concerning the incidents. He did so, a copy of which was opened to the Tribunal. He was subsequently issued with a final written warning and suspended for one week without pay following an investigation by the company into the incidents.

(P), a general worker gave evidence that he was working on the night of 13 October 2013. He told the Tribunal that he saw the claimant going after (AD) when he had the air hose. The claimant was trying to pull the air hose from (AD) and a tug of war ensued. He saw the claimant grab (AD) by his neck and then both the claimant and (AD) fell to the ground. The claimant had his hand on (AD’s) neck. He along with (B) approached and he (the witness) said it’s ok and the claimant then let (AD) go. Then claimant then walked away. He did not know if (AD) lost consciousness but he waived his fingers at him. (AD) did not react initially but did so after a few seconds. He gave evidence that (AD’s) eyes and neck were red in colour. He was interviewed by the company in relation to the incident and provided a statement (a copy of which was opened to the Tribunal).

(B) gave evidence that he was a shift manager on the night of 13 October 2013. He witnessed (AD) and the claimant involved in a tug of war with the air hose. He intervened and informed (AD) that it was not appropriate to use the hose as it did not have an air controller. He took the hose and was satisfied that he had diffused the situation. He went to attend to his other duties but very soon after as he turned a corner he saw the claimant on top of (AD) on the ground. He ran towards them and the claimant had his hand on (AD’s) neck. They then separated and the claimant left the scene. He noticed that (AD) had marks on his throat.

He did not request either of them to make a statement on the night as he himself was in shock following the incident. He provided a statement to the company regarding the incident (copy opened to the Tribunal). He accepted that the claimant had never been involved in any verbal or physical confrontation previously.

(EP), manufacturing director gave evidence that he became aware of the incident on the following day. The company held an investigation into the incident and the claimant and (AD) were suspended with pay pending the outcome of the investigation. Statements were taken from the claimant and (AD) and other witnesses to the incident. The matter subsequently progressed to a disciplinary hearing which took place on 16 October 2013. The claimant was provided with copies of all the statements in advance of the hearing, a copy of the company employee handbook, and was advised that he may bring a colleague of his choice to the meeting.

The witness gave evidence that he chaired the disciplinary hearing which the claimant attended with a work colleague known as (E). He told the Tribunal that he accepted that the claimant had given a fair statement of the incidents in question. It was an open an honest statement and the claimant admitted that he grabbed (AD) by the neck. There was commonality in all the statements provided and there was no dispute that an assault had occurred. He gave evidence that the claimant in his defence claimed that (AD) should not have had the hose and that he (the claimant) acknowledged that he had “lost it”  for a minute and a manager should have dealt with the issue.

He gave further evidence that the claimant did not express a high level of remorse for his actions. He never said he was sorry and it was (E) who apologised on his behalf. The claimant admitted that his actions were wrong. The witness accepted that (AD) had contributed to the incident and he was sanctioned as a result. However there was no evidence that (AD) had assaulted the claimant.

The witness told the Tribunal that he took the decision to dismiss the claimant as he could see no mitigating factors to stop short of a dismissal. He believed that the assault was at the upper end of the scale and this factor coupled with the claimant’s lack of remorse satisfied him that dismissal was the appropriate sanction. He communicated his decision to the claimant by way of letter dated 18 October 2013. The claimant was given the opportunity to appeal this decision a right which he exercised.

An appeal hearing was conducted by the then Managing Director on 24 October 2013 and the decision to dismiss the claimant was upheld. The Tribunal did not hear any evidence in relation to the appeal hearing as the Managing Director who conducted the appeal hearing no longer works for the company. There was no objection raised in relation to this matter by the claimant.

Claimant’s Case

(N) gave evidence that he has worked as a general operative for the respondent for 4 years. He was working on the night of 13 October 2013 and he saw the claimant taking the hose from (AD). The claimant had 90% of the hose with some of it on his shoulder. He then saw (AD) yanking the hose back. He (the witness) then attended to his work and when he turned around again he saw (AD) on the ground with (B) and (P) beside him. He provided a witness statement to the company in relation to the incident.

The claimant gave evidence that he worked as a maintenance technician with the respondent company for 11 years. He gave evidence that he was working on the factory floor on 13 October 2013. He saw (AD) with an air hose that he should not have had. As part of the maintenance crew it was his understanding that this particular air hose type had been confiscated. He asked (AD) for the hose and (AD) replied that he was putting it in Tomasz locker. When (AD) refused to give him the hose he grabbed hold of it and a tug of war ensued with the hose.

He told the Tribunal that in the struggle for the hose he grabbed (AD) by the scruff and pushed him against the wall. (B) then arrived at the scene and put his hands on the hose whereupon both the claimant and (AD) dropped the hose. The claimant gave evidence that he then picked up the hose from the ground and was walking with it towards his workshop. He told the Tribunal that he then got a thump on the back and (AD) called him a lazy bastard on two occasions. He got (AD) by the scruff and took him to the ground in a controlled take down. He did not hit (AD) but left his hand around his throat area. He wanted to frighten him and warn him off. (P) then tapped him on his elbow and he let go of (AD). He then walked away with the hose to the workshop.

He met with (AD) some 5 hours later during the shift. He told the Tribunal that (AD) said to him “you very bad boy, are you happy”. He replied by raising his two thumbs.

He reported for work on the following morning and heard a rumour that he was going to be suspended. He was subsequently called to a meeting by his manager and made a statement. He described this statement as a series of questions. The statement was then given to him and he signed it. He accepted that he read it prior to signing it but he was very upset at the time. He does not accept some of the language used in that statement but he accepts that he did not raise any such issue during the investigation/disciplinary process. He believed that he was correct to challenge (AD) concerning the air hose but accepts that it was wrong to engage in a fight. He believed that as part of the maintenance crew it was his job to take the hose from (AD). He received a thump in the back and was subjected to verbal abuse and he defended himself. He did not know if (AD) was dazed following the incident as he (the claimant) walked away. He described his actions as a “controlled take down” to defend himself and did not accept that it was an assault. He accepted that he “flipped” and lost control in the first incident but the second incident was a “controlled take down”. He felt justified in his actions and believed he was correct in trying to retrieve the hose. He gave evidence that it would have been good practice to segregate himself and (AD) on the night following the incident but (B) did not do this. He accepted that he did not apologise to (EP) but he told him that he was sorry that the incident happened.

He provided further verbal and documentary evidence to the Tribunal in relation to his efforts to mitigate his loss. He secured alternative employment in February 2014.

Determination

The Tribunal carefully considered the verbal and documentary evidence adduced at the hearing. Having regard to all of the evidence adduced the Tribunal is satisfied that the respondent has discharged the onus of proof in this case and finds that the claimant was fairly dismissed from his employment.

The Tribunal finds that, while there may have been some provocation, the actions of the claimant in what he described in his evidence as taking down (AD) in a “controlled take down” to be entirely unacceptable in a workplace situation. The Tribunal is of the view that this action amounted to gross misconduct. The Tribunal notes that (AD) was also rightly sanctioned for his part in the incident. The Tribunal is satisfied that the company conducted a fair investigation into the matter and followed correct procedures in conducting subsequent disciplinary and appeal hearings.

In making its decision the Tribunal notes section 6 (4) of the Unfair Dismissals Act 1977 as amended “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……..

(b) the conduct of the employee…….”

The Tribunal also notes in the case of Allied Irish Banks v Purcell 2012 23ELR 189, at P4, where it states the following – “It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view, but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one that the EAT or the court would have taken.”

Accordingly the Tribunal finds that the decision to dismiss the claimant was fair and reasonable in the circumstances and dismisses the claim under the Unfair Dismissals Acts 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)