ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002469

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 28/09/2016

Workplace Relations Commission Adjudication Officer: John Tierney

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

 Respondent’s Submission and Presentation:

The facts surrounding the Claimant’s dismissal concern two incidents that took place in the Respondent warehouse on 10 June 2015. The first incident involved him writing a derogatory statement in Polish on a piece of cardboard that was left for his co-workers to see in the course of carrying out their duties. The Respondent had it professionally translated. It read;

Drug addict’s carcass, society’s shadow, take it to a camp (concentration camp) or cut it into a trunk

A colleague of the Claimant discovered it in an aisle in the warehouse. He brought it to the attention the supervisor who called a meeting of all the staff present. He sought to discover who wrote the slogan. The Claimant admitted that he had. At this meeting the Claimant became aggressive and approached the person who discovered the slogan on the cardboard, in a manner that intimated him forcing him to move out of the way. The Claimant was told by the supervisor to desist in this type of behaviour.

The second incident also took place on the same day. Following the meeting staff returned to work. The Claimant deliberately drove his pick truck at high speed into the truck of another employee, causing him injury. Directly after the collision the Claimant began swearing at the injured party and making offensive gestures towards him.

The Respondent explained in detail how an investigation was conducted into both these incidents which including interviewing witnesses. It concluded that the Claimant had a case to answer.

Again a detailed explanation of how the disciplinary process was operated as per the Employee Handbook as well as the provision of minutes and documents. This resulted in the termination of the Claimant’s employment. He was provided with an appeal process. While the Claimant attended the appeal hearing he refused to engage. He confirmed that he understood the [process and all of the documents that had been provided. The outcome was that the appeal was denied.

Complainant’s Submission and Presentation:

Of note is the fact that on 17 June 2015v less than two months after the acknowledging a personal

Injury claim by the Claimant, the Respondent commenced disciplinary procedure against him.

The Claimant repeatedly stated that the alleged abusive comments are a quotation from a song and were written down by him as an aide de memoire and not addressed at anyone in particular. A screen shot of the song on YOU TUBE were exhibited to the Hearing.

The Respondent went to great lengths to translate the meaning of the words. The first person to see them did not speak Polish. In fact they were taken to another Polish employee who translated then in the presence of the supervisor who called the meeting. The Claimant believed that the matter was resolved after the meeting was held.

In regard to the collision, the Claimant and his colleagues work in a busy environment and such collisions are common. One witness was in a different aisle, the other was working away and the fourth who found the abusive note did not witness the collision. The other person who he had the collision with has had a history of disagreements with the Claimant and made complaints against him.

The Respondent does not seem to have considered a lesser penalty in any event throughout the whole proceedings.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

[Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Section 9(3) of the Protection of Employees (Employers’ Insolvency) Act, 1984 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9(4) of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.]

Decision:

I have considered the submissions of both parties. In considering all the witness evidence I have concluded that impact between the pick trucks was avoidable. Also, the incident of intimidating a work colleague during the course of the supervisors meeting was deliberate. These instances alone indicate abnormal behaviour on the part of the Claimant and unacceptable in any workplace.

The Respondent has a duty of care to provide a safe place of work for all the employees, the Claimant by his action was putting this in jeopardy. As a result he was dismissed on grounds of gross misconduct.

I find the dismissal fair and reasonable in the circumstances and the claim fails.

No other submissions were received on the day.

Dated:   12 December 2016