EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Vadim Dudoit UD737/2015
- Claimant
Against
Boyne Valley T/A Boyne Valley Group
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes B.L.
Members: Mr M. Carr
Mr A. Butler
heard this claim at Dublin on 22nd November 2016
Representation:
Claimant: Mr Joseph Traynor, Excel Consulting, 30 The Links, Seapoint, Termonfeckin, Co Louth
Respondent: Ms. Kiwana Ennis BL instructed by:
Ms Anne O'Connell, Sherwin O'Riordan Solicitors, 74 Pembroke Road,
Ballsbridge, Dublin 4
The determination of the Tribunal was as follows:-
Background:
The claimant was employed from the 25th of July 2008 firstly as a Machine Operator and subsequently as a Supervisor. He was dismissed from his employed for gross misconduct on the 22nd of May 2015.
On the 23rd of February 2015 a young colleague of the claimant’s (AD) made a formal written complaint to the Factory Manager (DMcN) concerning the claimant. Her complaints were elaborated on in a formal meeting with DMcN.
DMcN commenced an investigation. He interviewed AD on the 24th of February 2015. He then met the claimant on the 27th of February 2015 and again on the 3rd of March 2015. The claimant had been given a copy of the complaint prior to the meetings. AD also attended a second interview with DMcN. DMcN also interviewed other employees who had witnessed these alleged incidents, namely AL, LD, (mother of AD), IG and JK (AD’s boyfriend). Copies of these statements were submitted to the claimant.
On the 26th of March 2015 DMcN submitted his findings stating the issues warranted further investigation. In essence, five complaints were made. DMcN considered one to have been merely a normal work instruction given to an employee who was engaged in a specific task for the first time. In respect of a second, he found no corroboration. Three complaints were recommended for disciplinary proceedings. They were as follows:
- The alleged use of personal remarks in public by the claimant towards AD which caused her offence. In particular the remarks in connection with the appearance of her face and skin and remarks about her personal financial affairs and future family plans.
- That the claimant had slapped her hand.
- That the claimant had made remarks implying persons had been hired on the basis of sexual favours rather than on merit.
On the 1st April 2015 the respondent’s HR Consultant (RB) wrote to the claimant advising him a disciplinary meeting would take place on the 17th of April 2015. The claimant attended with a colleague (AG). The case was outlined to the claimant and he, the claimant, was asked for his responses.
On the 22nd of May 2015 RB wrote to the claimant of his conclusions into the matter in a detailed five-page letter. In respect of allegation 1, RB stated:
“While it is uncertain that there was any malicious intent in these comments, it is equally uncertain that they were offered in good faith. It is again the case that AD was the only person singled out for such attention. On their own theses comments could not support a finding against you, however they are not on their own and I conclude that they offer further evidence of your singling out (AD named) for unwanted attention, in public and in breach of Company policies on Bullying and Harassment.”
In respect of the allegation 2, RB found conflicting evidence given by the witnesses to the incident in the canteen. AL heard a loud slap. JK, AD’s boyfriend, who was seated nearest neither saw nor heard anything and IG described an overheard conversation discussing phones but saw no physical contact. The claimant had told RB that AD wanted to look at a colleague’s phone, which was being held by the claimant. The claimant had refused to give it to her and had brushed her hand away when she reached out for it. It was the evidence of all that after the incident everyone present in the canteen went about their own business as though nothing untoward had happened.
RB stated in respect of this allegation:
“In these circumstances I cannot find that there was a slap as set out in the complaint, however, you have accepted that there was physical contact directed by you at AD. In addition, you have accepted that you did refuse to show her [the colleague’s] phone when she asked to see it. On the balance of probability I conclude that this incident, while not of itself, sufficient to find Gross Misconduct is part of a series of behaviours on your part which has been directed to AD.”
In respect of the third allegation RB stated:
“The evidence offered by all parties indicates that there was a conversation, or conversations, around the subject of hiring decisions. Your own evidence indicates that at least part of the conversation was centred on how these decisions might be influenced. There is no compelling evidence that there was any wrongdoing on your part in connection with this part the allegation, therefore I find that you do not have a case to answer for this aspect of these allegations.”
RB found that the claimant’s actions fell into the category of gross misconduct and his employment was terminated. The claimant was given the right to appeal the decision.
On the 17th of June 2015 the claimant attended his appeal hearing with the Operations Director (FE). A letter dated the 24th of June 2015 was submitted to the claimant advising him the decision to terminate his employment was upheld.
Respondent’s Position:
The respondent’s HR Consultant (RB) and Operations Director (FE) gave detailed evidence of their meetings with the claimant during the course of the disciplinary and appeals process. Their letters to the claimant were opened to the Tribunal in full.
Both witnesses stated they had read all statements and minutes of meetings before meeting with the claimant.
RB stated, in his opinion, he felt the claimant had singled AD out and treated her quite differently to other staff. AD had only been working for the respondent a short time before she made the complaints against the claimant. RB said the respondent had a duty of care to its employees and such behaviour could not be tolerated. He felt there was no alternative but to dismiss the claimant.
FE, in his evidence, agreed with RB’s findings.
Claimant’s Position:
The claimant gave evidence in relation to the three allegations made against him. He stated that in respect of allegation 1, he, AD and her boyfriend JK had been sitting together working. It had been a general conversation regarding life. The claimant said JK had agreed with what was said to AD regarding studying. There had been no animosity between them on this occasion.
During one lunchtime in the canteen, a conversation took place between a number of employees regarding the use of sunbeds and the effect on one’s skin. The claimant said that he mentioned how bad they were for you but no-one, including AD, asked him to stop discussing it.
In respect of the second allegation, this was in respect of a mobile phone belonging to a colleague, which the claimant was holding at the time. AD had asked to see it and the claimant had brushed her hand away saying “no chance”. He stated that he did not slap AD, nor was he in any way aggressive towards her. No-one had reprimanded him at the
time for what he had done. The claimant told the Tribunal that the previous day AD had done virtually the same thing to him when he had asked to see her phone.
The claimant told the Tribunal that he had tried to offer an apology to AD but she refused. He said that he felt some of the employees, namely, AD’s mother, wanted rid of him. She had made such a comment in the past.
The claimant gave evidence of his efforts to mitigate his loss of earnings since his dismissal.
Under cross-examination the claimant accepted he had made comments about AD’s eyebrows, sunbeds and financial affairs. When asked he agreed that some people might find a comment regarding AD’s eyebrows may seem insulting to some people.
Determination:
The Tribunal is satisfied that the processes adopted by the respondent during its investigation and disciplinary processes were thorough and fair. It is clear that the claimant made certain comments to AD that she found unwelcome. It appears that he spoke to no other colleagues in a similar way. While they were unwelcome, the claimant says that they were made in the course of general conversation in which he was trying to be helpful. He says that they were made in the course of two conversations. There does not appear to have been a finding in the course of the disciplinary process to the contrary. The finding made by the respondent in relation to the incident in the canteen amounts to no more than brushing her hand away. Certainly the complaint that there had been a slap was not accepted. The Tribunal accepts as correct the submission made by counsel for the respondent that our role is not to impose our own decision where the decision made by an employer comes within a “band of reasonableness”. However, in this case, the Tribunal is satisfied that the decision to dismiss did not come within that band of reasonableness. It was a disproportionate response and should have been dealt with, at least initially, in a more low-key and constructive way. That is not to say that the comments were not unwelcome to the employee in question.
The Tribunal finds that the claimant was unfairly dismissed in all the circumstances. Accordingly, the Tribunal awards the sum of €15,000 (fifteen thousand euro) under the Unfair Dismissals Acts, 1977 to 2007. When the claimant was working full-time his wife worked part-time to facilitate their childcare arrangements. On his dismissal, she began to work full-time and he now takes care of their children, leaving him available only for part-time work. In assessing the amount of compensation, the Tribunal is taking this into account along with a lack of evidence of his efforts to mitigate his loss.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)