UD1113/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO: UD1113/2015

CLAIM OF:

Lukasz Otczyk - claimant

against

Heaney Meats Catering Company -  respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:             Ms C. Egan B.L.

Members:             Mr T. Gill

                             Ms H. Murphy

heard this claim at Galway on 18th November 2016 and 25th January 2017

Representation:

Claimant: Mr. Marcin Szulc, Rostra Solicitors, 78 Benburb Street, Smithfield, Dublin 7

Respondent: Mr. Alastair Purdy, Purdy Fitzgerald Solicitors, Block 1, GFSC, Moneenageisha Rd, Galway

Respondent’s case:

SH gave evidence of her role as quality and technical manager in the respondent company, which was a family business, who supplied meat to a large and diverse customer base. The company employed approximately 56 staff across different areas such as production, dispatch and delivery. The claimant worked in production area cutting meat.

SH told the Tribunal of an incident on the 06th July 2015 involving the claimant when he was entering product details into the computer system. The system froze and the claimant reacted by hitting the screen causing estimated damage of €2,500. SH wrote a letter to the claimant informing him that this act was considered gross misconduct, but because of the claimant’s previous unblemished record he was issued with a verbal warning that would remain on his file until July 2016.

0n 04th August 2015 SH received a phone call from DK, general manager, informing her of an incident that had taken place on the production floor. There had been a ‘physical altercation’ between the claimant and two other members of staff – BH and CH. As per disciplinary procedures laid out in the company handbook, the claimant and CH were put on suspension pending an investigation. SH interviewed everybody who had seen the incident.

SH invited the claimant to attend an investigation meeting on the 7th August and to bring a representative if he so wished. At the meeting the claimant enquired as to why all staff did not give a statement. SH explained that she only interviewed the staff who were in the boning hall and who had seen the incident. After the meeting she interviewed all staff who were working on the day of the incident and sent their statements to the claimant for his consideration.SH supplied CCTV footage of the incident at the behest of the claimant, but she stated that the camera nearest to the incident was not functioning at that particular time as a result of water damage.

In cross examination SH accepted that the claimant was not afforded a hearing in regard to the incident with the screen. With regard to the incident on the 04th August, SH was satisfied that the incident was instigated by the claimant telling BH to “f*** **f” and then pushing him. She referred the matter to the disciplinary stage of the process. It was established that SH was the aunt of CH and BH. BH was 14 years old at the time.

BH gave evidence of working in the factory. On the day in question he was vacuum packing meat. He stated that he asked the claimant to cut some bags for him. The claimant told him to “f*** **f” and using his left hand, pushed BH. CH came over and asked the claimant to repeat what he said and a scuffle ensued. CCTV footage of the incident was opened to the tribunal.

OD, accounts manager for the respondent company, gave evidence of conducting the disciplinary hearing. She endeavoured to judge the incident against the company disciplinary policy. Health and Safety was a serious issue for the company and with a lot of heavy machinery at the factory, she believed to push somebody in that environment was extremely dangerous. She stated that when she looked at the claimant’s file she saw a ‘pattern developing’, due to the incident with the screen and now this particular incident.

The witness explained that there were 120 CCTV cameras throughout the factory, but that the camera nearest the incident was broken. At the hearing she stated that the claimant did not dispute pushing BH. On 14th August 2015 OD wrote a letter of dismissal to the claimant, informing him that his behaviour was considered gross misconduct as per company disciplinary policy.

In cross examination OD stated that she used the witness statements gathered by SH to ‘get the picture’ and also went to some witnesses individually to ask if they were standing over their statements.

Hearing resumes 25th January 2017:

The Tribunal heard evidence from CH who was the production manager in 2015. He explained that DK the factory / general manager gave him the work list and he them instructed the butchers. One day in August 2015 he arrived into work at 6.40 a.m. and stated that he said hello to all and to the claimant who told him to “f*** **f” or don’t “f****** talk to me”. He stated that he left the claimant alone. He then went to get into his work wear and then proceed to the boot wash area and onto the work floor. The witness described the work area in detail.

The witness then went on to describe an incident with the claimant. He intervened and stated that the claimant pushed him back and told him to “f*** **f’. He stated that he saw the claimant had a knife in his hand. He noticed that BH was scared. He stated that his natural reaction to being pushed was to push the claimant back. He stated that there was water on the floor and that the claimant fell and he fell on top of the claimant. They scuffled on the ground. It ended suddenly afterwards when DK shouted at them and he was pulled off the ground. He was told to go to the office and he was suspended and told to go home. Some days later he was called to a meeting with DK and DK told him that he could return to duty. The witness explained that he now drives for the Respondent. It was established that the witness is the son of the owner.

The Tribunal heard evidence from DK the factory / general manager. On the day in question the Tuesday 17th, after the August bank holiday, he heard shouting from another area of the factory. He went to the area and saw the claimant “push-up against CH” and saw the two of them falling to the floor, which was wet. He had not seen the earlier part of the incident. He stated that he told them to “break it up”. He then met the Claimant at the door and the Claimant was getting on his bicycle. The witness asked the claimant what had happened and he replied that he was “sick of this s***” and then cycled away. He then met CH with SH. He agreed that CH could return to work on the following Monday. The witness was not involved in the disciplinary process.

The Tribunal heard evidence from JK who was a general operative at the time of the incident. He stated that he saw the claimant “putting his feet towards”, CH and “a scuffle started”.

Claimant’s case:

The Tribunal heard evidence from NP, who worked as a dispatch manager. He did not witness the incident but he heard about it from work colleagues. He stated that he saw CH at work on the Tuesday of the incident and on the following Wednesday and Thursday, and that CH was present in his work gear. His evidence contradicted the Respondent’s evidence that CH was suspended on the day of the incident and told to go home.

The Tribunal heard evidence from the Claimant. He stated that his employment had been uneventful apart from one previous incident regarding a broken computer screen. He said that he had reported the broken screen, which had a crack on it already to DK, factory manager. The claimant had pushed the screen too hard, but stated that DK assured him that it “was ok”. He stated that SH did not tell him that he was on a warning notice as a result and that this was the first that he had heard of a warning.

On the day of the incident 4/8/2015, the claimant stated that he arrived at work at 6.50 a.m. to start at 7.00 am. He went through the boot washes and was wearing his apron and holster pouch. He was wearing his steel glove on his left hand and was up to his elbow in chain mail. He went to the fridge and got a shoulder of lamb, which he brought to the table and commenced boning using a boning knife. CH was working on a table to the left of the claimant. BH approached the claimant and asked him to cut plastic bags with the knife, but he told BH to “f*** **f” and go to somebody else as he was wearing a protective glove made of steel and was unable to help him. He explained to the Tribunal that it was not easy to cut through the plastic bags with his steel glove while involved in the boning process.

The claimant stated that CH, straight away, approached him and challenged him as to what he had just said to BH. He said that CH pushed him in the face with his fist, causing him to fall on the floor, while CH kicked him. Co-workers separated them. The claimant stated that he did not push BH as alleged and that he did not first push CH.

The claimant went straight home and subsequently went to his GP, suffering from lacerations to his head. He made a complaint to the Gardaí.

Some three hours later the claimant received a letter of suspension in his letterbox, from SH and indicating that there would follow an investigation meeting. The claimant was subsequently invited, by letter dated 5/8/2015 from SH, to an investigation meeting on the 7/8/2015. SH convened the meeting with a note taker present.

The claimant had issues regarding the lack of statements from all of those who were present in the boning hall on the date of the incident. The claimant also had an issue with the CCTV footage. While he subsequently received a copy of CCTV footage, he was advised by letter dated the 10/8/2015, from SH that: “There is another camera located near the locus of the incident but unfortunately this camera was not operating on the date in question”.

By letter dated the 11/8/2015, from SH, the claimant was advised of the findings of the investigation meeting, which held that “On the balance of probabilities the claimant had also pushed BH and had instigated the physical confrontation with CH and that his conduct had amounted to gross misconduct”. The matter proceeded to the disciplinary stage.

The claimant replied by letter on the same date and denied that he ever touched BH and that the CCTV footage had shown CH coming at the claimant from the other side of the of the table and hit the claimant in the face.

By letter dated 11/8/2015, from OD the claimant was advised of a disciplinary meeting to be held on the 13/8/2015 to allow him “To put forward any points you wish regarding the incident and the findings of the investigation”. The claimant attended the meeting which he said lasted ten to fifteen minutes.

The claimant was dismissed for gross misconduct by letter dated 14/8/2015 from OD. The contents of the letter reiterated the fact that the camera located near the locus of the incident “Was not in proper working order on the day of the incident”. It also stated that “Had also been dealt with through the company disciplinary policy”. The claimant appealed his dismissal. AH, the employer’s daughter, and sister of BH and CH, heard the appeal on the 27/8/2015. The appeal failed.

Determination:

The Tribunal gave careful consideration to all the evidence and submissions in this case. There was conflict of evidence between the parties regarding the incident of 4th August 2015 which precipitated the claimant’s dismissal. The Tribunal noted that of the one hundred and twenty CCTV cameras throughout the factory, the camera nearest to the locus of the incident was allegedly “not in proper working order on the day of the incident”. On the balance of probabilities, the Tribunal preferred the claimant’s version of events.

In deciding whether or not the dismissal of the claimant was unfair, the Tribunal applied the test of reasonableness to the nature and extent of the enquiry carried out by the respondent.

An employer, when investigating disciplinary procedures against an employee must follow the rules of natural justice, that is, the rule against bias. An employee is entitled to a full, impartial and objective investigation of the allegation and to an independent and objective appeal.

In this case the respondent did not adopt procedures or conduct the enquiry in such a way as would have been done by a fair and reasonable employer. SH, who initiated the disciplinary process and conducted the investigative meeting, is the sister of the employer and the aunt of BH and CH (who were involved in the incident of the 4th August 2015).

OD, the accounts manager, handled the disciplinary stage of the process, which appeared to rubber stamp the findings of SH.

The claimant’s appeal was heard by AH, who is the employer’s daughter and sister of BH and CH.

By reason of the foregoing, it was clear that the claimant was denied the right to a fair and impartial disciplinary procedure

The Tribunal finds that the flaws in the investigative and disciplinary process are of such significance as to render the claimant’s dismissal unfair and awards the claimant the sum of €20,936.00, as compensation under the terms of the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This ________________________

(Sgd.) ________________________

(CHAIRMAN)