Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Retail Store

 Representatives

Represented

Represented 

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-00005855-001

14/07/2016

The Complainant was employed as a Sales Assistant with the Respondent since 1^st November 2013 until the employment was terminated on 19^th April 2016. The Complainant was paid €388.00 gross per week and he worked 27 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 14^th July 2016 alleging he had been unfairly dismissed by the Respondent on 19^th April 2016. The dismissal was not disputed.

The Complainant commenced employment on 1^st November 2013 at a named retail outlet of the Respondent. On 12^th April 2016 as the Complainant was returning to the shop floor following a break, he was told by his named Line Manager to stop chewing something. He approached him for a second time and told him to “lose the gum”. The Complainant reacted angrily and began to shout at the Line Manager, The Line Manager confronted the Complainant, raising his voice but the Complainant pushed him to the ground, using both hands. The Line Manager stood up and again confronted the Complainant who walked away and subsequently went home.

An investigation into the incident was carried out by a named Store Manager who interviewed the Complainant and a number of witnesses and also reviewed the cctv footage. The Complainant asserted that he had acted in self-defence as he believed the Line Manager was about to hit him. Following investigation the evidence in relation to this was inconclusive. The Store Manager was aware that the Complainant had in January and March 2016 been involved in similar incidents with Managers which the Managers had issued instructions to the Complainant who had reacted in a heated manner. However in the incident that gave rise to this dismissal the Manager had been assaulted and had fallen to the ground. The Store Manager decided to dismiss the Complainant with a right of appeal. To a named Textile Manager.

The Complainant appealed his dismissal by letter dated 22^nd April 2016. The Textile Manager who conducted the appeal issued her decision on 6^th May 2061 upholding the decision to dismiss. The Complainant’s Solicitor wrote to the Respondent on 26^th May 2016 raising a number of issues in relation to the appeal in circumstances where no appeal hearing took place. A further Letter issued to the Respondent on 27^th May 2016 in response to the letter of dismissal where it was alleged the Complainant admitted to assaulting the Line Manager. This was totally rebutted by the Complainant who asserted he had never admitted to this assault. The Respondent stated that the Complainant had appealed his dismissal in line with Company Procedures.

The Respondent referred to S.I. 146/2000 which may require allegations to be put in writing. The Respondent also stated that the notes of the meetings clearly show, that the allegation, that on 12^th April 2016 the Complainant pushed the Line Manager, causing him to fall to the floor was put to the Complainant and he was advised of the witness statements interviewed and what they had to say concerning the incident. The notes also show that the Respondent did investigate fully his explanation of self-defence. He was afforded a right of representation and he was accompanied by a named colleague at all meetings. Therefore it is clear that the Complainant was afforded fair procedures and impartial determination of the issues concerned. Furthermore the Complainant was afforded a right of appeal and noted that S.I. 146/2000 does not require an oral appeal hearing or the holding of a meeting and the Respondent’s Disciplinary Procedures provide for a paper appeal only.

The Respondent cited case law in support of their argument that they had acted in a reasonable manner in dismissing the Complainant and that the decision to dismiss fell within the “band of reasonable responses” available to an employer finding itself in the position of the Respondent.

An incident occurred on 12^th April 2016 when he was working a shift from 4pm to 12 midnight. He had been initially allocated to the Fruit and Veg Section and the then named Store Manager, advised him that when he had finished in this section he should go to the Off-Licence Section. While he was attending to his duties a new Floor Manager came on duty, Named, who advised him not to go to the off-licence section after 7pm but that this new Floor Manager would have alternative duties for him. The Complainant advised that the previous Floor Manager, who had finished his shift, had left explicit instructions but the new Floor Manager ignored this. The Complainant, the New Floor Manager then agreed to go to the Office of the previous named Manager who had issued the instruction re the Off-Licence. The Complainant was not present in the office but when the new Floor Manager came out he was informed to continue to do as instructed by his named previous Floor Manager.

He went on his break at 7pm that evening and on returning he stated he was chewing a mint and that the new named Floor Manager approached him and advised not to be chewing gum. The Complainant asserted that the Floor Manager approached him in an aggressive manner such that the Complainant became fearful and intimidated. The Complainant stated that the Floor Manager placed his forehead against the Complainant and proceeded to verbally abuse him and that he responded in self-defence by repelling the Floor Manager and that he sought to restrain him.

The Complainant along with a number of other employees were summoned to the office of the Floor Manager on the same date. He was invited to bring a work colleague which he did and the other Floor Manager and another named Manager were also present. He was suspended on 12^th April 2016 and invited to attend a meeting on 16^th April 2016. At this meeting he was invited to review CCTV footage and to explain what had occurred. He was then advised to go for a coffee and when the meeting resumed he was dismissed. The Complainant argued that in the circumstances his dismissal was both unreasonable and unfair. The Complainant stated that the Respondent had received an email from a customer in relation to the incident and this person was independent and he had observed that the Complainant’s response was in self-defence. Furthermore this witness on the day approached a female member of staff, named, to voice his concerns re the incident. This email was forwarded to the Respondent on 14^th April 2016 but was ignored by the Respondent   before and after the Hearing on 16^th April 2016.

The Complainant was out of work between April and November 2016 and is claiming compensation of €9,100.00. The Complainant commenced employment on 14^th November 2016, working 3 or 4 days a week by 12 hour shifts and is paid €14.85 an hour. The Complainant also stated that he had commenced College in September 2016

On the basis of the evidence and written submissions by both Parties I find as follows:

The evidence from both Parties in their submissions was that on 12^th April 2016 an incident occurred on the shop floor between the Complainant and the Named Floor Manager. However I note in the statement of this Floor Manager presented by the Respondent to the Hearing that the Floor Manager signed and dated his statement on 11^th April 2016, the day before the alleged incident of 12^th April 2016

The evidence from both Parties to the Hearing was that the Complainant had not been provided with the witness statements, one dated 12^th April 2016and the second undated. Both relate to an incident occurring on 12^th April 2016 not 11^th April 2016 as the statement of the Floor Manager asserts.

Both Parties confirmed that the Complainant was suspended on 12^th April 2016 and that a meeting was held with the Complainant on 13^th April 2016. The minutes/notes of this meeting provided to the Hearing but confirmed had not been given to the Complainant post this meeting; confirm that the meeting is an investigation meeting under the disciplinary process which was to investigate what occurred the previous evening, 12^th April 2016. The notes/minutes state that this could lead to disciplinary action up to and including dismissal.

The notes/minutes of this meeting do not show that the Complainant admitted to assaulting the Floor Manager as asserted in the dismissal letter dated 19^th April 2016. At the resumed meeting on the same date, i.e. 13^th April 2016, the notes/minutes show that the Complainant did acknowledge that he had pushed the Floor Manager but stated this was in self-defence.

I note the investigation meeting with the Floor Manager of 14^th April 2016, the Floor Manager does state, according to the notes/minutes, “I went up beside him. Were you right up at his face. Well I leant into him. Were your head touching off his head? No I was close, but I wasn’t touching him. Named said your head was touching off his hair. No I don’t recall that. I was close but I don’t remember touching off his head”. The Floor Manager does say that the Complainant pushed him over with his two hands and that he fell to the floor.

A Disciplinary Meeting took place on 16^th April 2016 and the Complainant was informed of this at the resumed investigation meeting of 13^th April 2016. The minutes of the meetings of 13^th April 2016 were read out to the Compliant according to the notes/minutes of the meeting of 16^th April 2016 and that the Complainant agreed that these were an accurate account of the meeting. I note that this Disciplinary Hearing was conducted by the same two people who had conducted the investigation meetings on 13^th April 2016. I note further that at this Disciplinary Meeting on 16^th April 2016 the Respondent stated they had met and interviewed five named witnesses and their statements were provided to the Hearing but had not been provided to the Complainant. I further note that the Complainant requested the Respondent to interview the named customer who had forwarded an email to the Respondent on 14^th April 2016. The response of the Respondence as noted in the notes/minutes is as follows: “We have met all the witnesses, 6 of them and this is enough”. And further the Respondent stated “WE don’t require it”. This meeting was adjourned for 30 minutes The meeting resumed and the Complainant’s contract was terminated with immediate effect citing gross misconduct. He was informed of his right of appeal within 7 working days to a named Manager. At the end of this meeting the notes/minutes record that the Complainant sought the notes of all meetings. He was requested to put this in writing. The evidence was that the Complainant did send this request but the notes/minutes were not provided to the Complainant and this was confirmed by both Parties.

The Dismissal was confirmed in writing on 19^th April 2016

The Complainant appealed the decision to dismiss him by letter dated 22^nd April 2016 to a named Manager who was to conduct the appeal. Both Parties confirmed that there was no appeal hearing but rather a paper appeal. The outcome communicated to the Complainant by letter dated 6^th May 2016 was to uphold the dismissal. At the Hearing the Respondent stated that all appeal hearings are paper appeals, there is no oral hearing, and that this is in line with the current Disciplinary procedures of the Company. I have examined these procedures provided to me at the Hearing and I note that the Appeals procedure is silent on whether the appeal is an oral appeal hearing or a paper hearing.

I further note that the Disciplinary Procedures of the Company provide for a Stage 1 – Verbal Warning – Stage 2 – verbal warning -

I note the Respondent referenced a meeting with the Complainant on 6^th January 2016 and on 1^st March 2016. However I also note that the Complainant was not issued with any warning in relation to these meetings. Stage 3 – Written Warning – Stage 4 – Suspension without Pay and Stage 5 –Dismissal. The Respondent confirmed at the Hearing that the Complainant had not been subject to either a verbal or written warning during the course of his employment prior to his dismissal. The Respondent confirmed at the Hearing that they did not consider an alternative to dismissal as they considered that the Complainant’s action was gross misconduct and therefore the appropriate sanction was dismissal.

The Supreme Court in Ruffley v The Board Of Management of St Anne’s School delivered by the Court on 26^th May 2017 observed as follows “the common law in Ireland has not developed through judicial decision but instead has been subject to an intervention in the shape of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace)(Declaration) Order 2002 (S.I. No 17 of 2002”). While this decision of the Supreme Court relates to procedures for investigating bullying complaints there is a similar Code of Practice – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, S.I. 146/2000 which has established the procedures to be implemented by an Employer in relation to disciplinary procedures.

Dismissal – Fair Procedures