UD971/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                     CASE NO.

Keith Matthews

- claimant                                                                                                     UD971/2014

Against

Mullingar Recycling Resource Centre Limited

- respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. T. Ryan

Members:     Mr P. Pierson

                     Mr J. Maher

heard this claim at Mullingar on 10 September 2015, 18 and 19 November 2015

Representation:

Claimant:   Mr Shane Geraghty B.L instructed by Mr. Louis Kiernan, Nooney & Dowdall,

                   Mary Street, Mullingar, County Westmeath

Respondent: Mr Michael O'Sullivan, Arra HRD Limited,

                     Castlelost West, Rochfortbridge, Co Westmeath

Background

The respondent is a community employment scheme (re-cycling centre). The claimant was dismissed following an altercation with his manager in May 2014.

Respondent’s case

MW manager/director of the Resource Centre gave evidence of starting to work with the centre on the week before the altercation. The scheme supervisor advised him of an incident and it was followed up by a phone call from the alleged recipient of the aggression. The claimant came to his office, he was irate and upset. MW told him to calm down, leave the site and that he would meet him the next day. He met the claimant the next day and suspended him on full pay pending an investigation. The minutes of the meeting were read to the Tribunal.

Over the next few days MW interviewed and took statements from six people who were in the vicinity of the altercation. The claimant was dismissed for gross misconduct at a meeting of 12^th May and given leave to appeal the decision. MW conceded that the claimant was not given witness statements in advance of the disciplinary meeting.

The decision to dismiss was based mainly on the witness statements. On 14^th May the claimant came in to MW’s office. He returned his boots and overalls and apologised, thanking MW and saying that he understood his decision. He said he wasn’t appealing the decision and asked for his P45 to be expedited.

The respondent then received a letter from the claimant’s solicitor dated 30^th May appealing the decision but it was out of time and the position was already advertised.

The supervisor and office manager at the site (B.McL) gave evidence. The manager of the resource centre who was involved in the altercation with the claimant contacted her by telephone on the 30 April 2014. He reported to her that an incident had occurred that day involving the claimant which she reported to MW. The claimant arrived at the office that day seeking a private meeting with MW. The witness attended the investigation meeting as a note taker the following day with MW and the claimant present. The claimant was asked for an account of the incident. The claimant demonstrated what had occurred the previous day. B.McL and MW met with the resource manager and took a statement on the 6 May. She took other witness statements after that date and attended the claimant’s disciplinary meeting on the 9 May 2014. The witness recalled that the claimant was given the manager’s statement at that meeting and allowed to comment. The other statements were not given to the claimant as no decision was made and the claimant may be returning to work with the individuals who had given witness statements. No physical injuries were reported after the incident.

The claimant’s previous manager BM gave evidence of assisting the claimant after his dismissal. He provided a reference in order for the claimant to obtain alternative employment.

Two witnesses of the incident gave evidence on behalf of the respondent. NL recalled that during an informal talk called by the resource centre manager on the 30 April 2014 the claimant’s mobile telephone rang. The manager asked that the claimant wait and not answer the call, however, the claimant answered the call and moved away. The claimant was then followed by the manager who asked him to hang up the call. The claimant using his hand held the manager back pushing him away. After the call ended the claimant went to the canteen area. Words were exchanged and the manager and claimant came together with their heads making contact. The manager instructed the claimant to leave the site while the claimant insisted that he did not have the authority to instruct him to leave. AB gave a similar account of the incident adding that he heard the claimant say to the manager that “family comes first”. His evidence was that there was much shouting and roaring, that the claimant and the manager put their heads together but not a head-butt.

Claimant’s Case

The claimant commenced employment with the respondent company in July 2009 and had no issues and had a good working relationship with his managers. Things changed at the site in October 2013 when the manager changed at the resource centre. Cheaper protective equipment was introduced and he felt bullied by the new resource manager. While undertaking normal duties on the 30 April 2014 the manager noticed that there was recycling products mixed with general waste which was an issue with some pubs discarding drinks straws, beer mats and bottle tops in the recycling bins. The manager was angry and was kicking items which employees were sorting on a trailer. The manager commented “are you committed to your job? If not fuck off”. The claimant believed the comment was directed at him and described the manager’s behaviour as abusive. The claimant’s telephone rang and he noted the call was from his son’s crèche. He said he had to take the call and the manager instructed that he not answer the call. He took the call and the manager attempted to grab the phone from his possession. The claimant used his hand outstretched preventing the manager from grabbing the phone. He called the manager “an ignorant prick” and things escalated. He described standing face to face with his manager “like two bulls”, with no physical force. He told the manager his child was unwell and he left the site. Having made arrangements for his son to be collected from the crèche he returned to work. A further exchange of words continued until the manager contacted MW on the telephone and MW told him to go home. He left and called to MW in the office and he was suspended with pay. The claimant returned to give his account of the incident the following day. He attended a disciplinary meeting on the 9 May and had not been furnished with the disciplinary procedures or the statements in advance of the meeting. At the meeting he read the resource manager’s statement and refuted certain details. The claimant regretted his own behaviour. He was dismissed by letter dated 12 May 2014.

Determination

Under Section 6 of the Unfair Dismissals Act 1977 the burden of proof, in an unfair dismissals case, is firmly placed on the employer to prove that a dismissal is fair. Section 6(a) states that a dismissal shall be deemed to be unfair, unless having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The Tribunal is satisfied that the investigation and decision making were fundamentally and procedurally flawed for the reasons set out hereunder.

• The Tribunal notes that the respondent failed to follow fair procedures in the dismissal of the claimant and in particular failed to follow SI 146 / 2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000. Further the respondent failed to adhere to the basic principles of natural and constitutional justice in particular, the respondent failed to give the claimant: (i) an opportunity to consider the evidence that was being used by the respondent to form the basis of the respondent’s decision to dismiss him; and (ii) failed to give the claimant an opportunity to refute this evidence.

• It is well established that an employee has a contractual and constitutional right to fair procedures. (In Re Haughey [1971] IR 217) This right was reinforced by Henchy J. in Kiely v. Minister for Social Welfare [1977] IR 267 where he stated:

“This Court has held, in cases such as In Re Haughey [1971] I.R. 217, that Article 40, s. 3, of the Constitution implies a guarantee to the citizen of basic fairness of procedures”.

• The same individual conducted the investigation meeting as made the disciplinary decision. Unless it cannot be avoided the person who carried out the investigation should not be the decision maker. (The Tribunal is cognisant of the fact that in a small workforce it may not be possible to separate the investigator from the decision maker). In the case before the Tribunal it would have been possible, and wise, to separate the two roles.

• The respondent did not consider any alternatives to dismissal. The Tribunal holds that the sanction of dismissal was disproportionate in all the circumstances.

• The respondent purported to terminate the claimant’s employment on the basis of gross misconduct. “Gross misconduct” must be something very serious indeed, perhaps criminal or quasi-criminal in nature, and indeed can be considered as one step down from a criminal offence”. There was a physical altercation of a minor nature, but it happened nonetheless, and both the claimant and the manager contributed to this. Having said that the Tribunal does not consider what the claimant did to amount to gross misconduct.

• The respondent failed to provide the claimant with copies of      the statements and the evidence compiled in the investigation against him.      The respondent took witness statements from six people W, L, B, D, C and      M. It is accepted by the respondent that the witness statements were taken      days in advance of the disciplinary hearing. The statements from five      witnesses were not put to the claimant, nor was he given an opportunity to      review those statements. Furthermore      the respondent commenced the      disciplinary process against the claimant, by letter dated the 2nd May,      without witness statements. This      makes the investigation fatally flawed. Indeed the statements were only given to claimant at the second      hearing of the Tribunal.

• The failure of the resource manager, who was involved      in the incident with the claimant, to give evidence is surprising in the      Tribunal’s view.

• On the 30^th April 2014 the claimant was suspended with pay. The following day, 1^st May 2014, an investigation meeting took place. No statement was taken from the resource centre manager involved, prior to the claimant’s investigation meeting. The claimant should have been given a fair opportunity to put his defence together and given a fair opportunity to review the allegations in the statements made by the witnesses. It is unacceptable and inappropriate on procedural grounds to furnish just one statement on the morning of the hearing when the respondent was seeking to terminate his employment.

Having considered all the evidence the Tribunal considers the sanction of dismissal unjustifiable, and that the punishment does not fit the crime. In all the circumstances the dismissal was unfair and the Tribunal, taking the claimant’s own contribution into account, awards him compensation in the amount of €9000.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)