ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001759
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00002396-001 | 04/02/2016 |
Venue: Ashdown Park Hotel, Gorey Co Wexford
Date of Adjudication Hearing: 16/08/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background
The Complainant was employed as a General Operative from 1st July 2010 to 22nd January 2016. He was paid €9.90 per hour and worked a minimum of 35 hours per week. He has claimed that he was unfairly dismissed. He sought compensation.
Following a hearing on 16th August 2016 a settlement between the parties was arrived at. This settlement was not implemented so a decision is now issued as per the terms of the settlement.
Respondent’s Submission and Presentation:
An altercation and a fight took place on the company premises during working hours. Both employees accepted that it took place and the basic facts were accepted. The only witness CM stated that the Complainant was the instigator of the physical attack. While accounts of the protagonists differ the company investigation led to the conclusion that both parties were engaged in fighting and both were dismissed. The Complainant appealed the decision. The appeal was heard by the Operations Director who upheld the decision to dismiss. The Respondent operates in an environment where there is a range of machinery and the constant movement of goods and people. It is essential that the health and safety element of the scenario is fully considered. It is company policy that fighting is considered gross misconduct. Employees in the past were dismissed for fighting. Given the set up and work environment fighting could not be tolerated so summary dismissal was warranted. This dismissal was fair and the claim is rejected.
Complainant’s Submission and Presentation:
On the night of 13/1/2016 another staff member who has only been with the company less than 6 months became verbally abusive towards the Complainant and also threatened him in an aggressive manner at which point he called and waved to the supervisor to calm the situation. As the supervisor arrived at the scene she tried to calm the situation down, as she was doing this the other staff member some how managed to get passed her, as she was standing between us and made a run for him. He then went to grab him around the neck and as he grabbed the Complainant he put his hands up to protect himself which resulted in both ending up on the floor. They struggled on the floor for a few minutes as he was trying to protect himself and calm him he managed to get back up on his feet while still holding his arms to stop him from trying to hit him. Other staff members managed to calm the situation and he then walked away and finished his shift without any further altercations. The following morning the company rang him and asked him to come in to discuss what had happened. He told the management what had happened as above and he gave them a statement, he was then told he was suspended for up to 5 days with pay pending investigation. After 5 days he was called in and told he was immediately dismissed with no notice under the grounds of gross misconduct. He was extremely shocked and upset by this as he had been with the company since 2010 with an exemplary record. He told them at this meeting that he would be appealing the decision as he felt he had done nothing wrong only to defend himself. Hr delivered a letter to the company management to request an appeal which was accepted. When he arrived for the appeal he again told them he wasn't happy with the decision as he felt he had done nothing wrong. They said that they would investigate it further and contact him within a few days but they also handed him his P45 before leaving this appeals meeting. His appeal was not successful. |
He was not given fair play with the investigation and appeal. The witness CM didn’t say in the original statement that she was pushed out of the way yet she did so at the Appeal. The other employee involved did not state in his statement that he had his hands around his neck. He actually said that both had “squared” up at same time. While he was aware in the past that employees had been sacked for fighting there were times when both were not sacked. He didn’t use a representative because he believed that he had done no wrong but defend himself. There was nothing in writing following the investigation. A witness A was not interviewed at investigation or appeals time. Cameras were not checked. The letter of dismissal does not provide for an appeal. He was given his P45 at the appeal hearing. The dismissal was too severe and proper procedures were not followed.
He has sought work but with little success. He found casual work at €10.00 per hour. He undertook training on forklift driving and safe pass training.
Findings
Substantive matters
I note the company policy on dismissal for fighting.
I note that there is precedent that employees have been dismissed where fighting has been established.
I find that the basic facts of an altercation happening has been established.
I note the conflict of evidence regarding who initiated the altercation.
I note that a witness CM stated that the Complainant started it.
On the balance of probability I find that the Complainant started the altercation.
Based on company policy and practice I concur with the dismissal decision.
Therefore I find that the dismissal was substantively fair, that is the Respondent had sufficient grounds to dismiss.
Procedural matters
I find that there were procedural flaws in the process.
The Complainant should have been advised in writing in advance of the investigation what the allegations were and the potential seriousness of the outcome.
He should have been advised to have representation.
When the investigation was concluded the Respondent should have escalated the matter to a disciplinary investigation once it was decided that the Complainant had a case to answer.
He then should have been advised in writing of the allegations, the potential outcome of dismissal and his right to representation.
The witness A should have been interviewed.
There should have been an investigation into cameras in the vicinity of the altercation.
His letter of dismissal did not provide for an appeal of the decision.
He should not have received his P 45 at the appeal hearing.
I find that these matters have rendered the dismissal procedurally unfair.
I note that compensation is the redress sought by the Complainant.
I find that the Complainant has contributed significantly to his dismissal and this will be reflected in the quantum of the award.
Decision:
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.
I have decided that the dismissal was unfair on procedural grounds.
I have decided that the Respondent should pay the Complainant €4,500 in compensation which is 13 week’s pay. This reflects his significant contribution to his dismissal.
This is to be paid within six weeks of the date below.
Eugene Hanly
Adjudication officer
Dated: 23-November 2016