ADJ-00004079

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004079

Complaint for Resolution:  

Date of Adjudication Hearing: 02/11/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure: 

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 and 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.

Attendance at Hearing:

Respondent’s Submission and Presentation:

The respondent disputed the claim for Unfair Dismissal and proceeded to outline the background to the case.

The complainant commenced work as a General Operative in a meat factory setting in November, 2008.

The complainant was at work in the “green offal room” on 8 January 2016 when a visiting supervisor from a different company observed an incident between the complainant and another member of staff, Mr K .The incident consisted of the claimant shouting at Mr K and subsequently spitting in his face and acting in a violent manner .The visitor to the site, Mr V reported the incident to the production supervisor .The respondent commissioned an investigation led by Mr HSM, (Health and Safety Manager)

The respondent invited the complainant to an investigatory meeting .The complainant attended the meeting on January 25 in the company of his daughter .The complaint was translated into Romanian which is the complainants native language .The respondent considered the statements of Mr V, Mr K and the complainant and decided that he had a case to answer .A Disciplinary meeting was held by the General Manager , Mr GM, on 1 February , 2016 and the complainant brought his wife and daughter as his chosen representatives. He was informed of the severity of the allegations and informed that sanction could include dismissal.

The complainant contended that he had been provoked by Mr K and asked this to be investigated also. The respondent agreed to this .He also confirmed that he was on medication for depression but was deemed fit for work by his GP.

The respondent terminated his employment on February 1 with immediate effect .This was appealed on 29 March 2016 where the complainant was represented by his Union. The appeal was heard by Mr GHR (Group Hr) who upheld the summary dismissal.

The company contended that the complainant was presented with a thorough process in line with the company policy and fair procedures which justified that the decision taken to dismiss the complainant, upheld on appeal came within the band of reasonable responses open to the respondent. It was the first dismissal within a five year period at the respondent plant and was proportionate in all the circumstances.

The respondent submitted that the complainant had commenced parallel proceedings before the Injuries Board. The respondent relied on case law contained in:

White V Cadbury Irl ltd, UD 44/79

Pacelli V Irish Distillers [2004]ELR 25

O Mahony V Whelan (t/a Pallet Providers) [1992] ELR 117

Creed V KMP Co op Society ltd [1991] ELR 140

BigaignonV Power Team Electrical Services ltd UD 939/2010. [2012]23 ELR 195

Evidence of Mr V (Visiting Supervisor from a different company)

Mr V explained that his company bought products from the respondent and he was acquainted with the complainant and Mr K. He was on the respondent site, in the offal room on 8 January, 2016; He submitted that he was standing 5 to 10 yards away from the complainant when he heard the complainant shout at Mr K about a bin. He witnessed the complainant throwing product on the floor in the absence of the bin .He saw Mr K approach the complainant and the complainant spat twice in his face, while waving a knife in his hand on the stand .He saw Mr K wipe his face .He judged the episode as one not of horseplay but one of “pure aggression”. He had 30 years experience in the business and reported the incident to the production supervisor, Mr PS. He did not formulate a complaint.

During cross examination, Mr V confirmed that the site was noisy and ear protectors were worn, but shouting was not necessary to communicate .He confirmed that the complainant was calling to Mr K to move the bin. He disputed saying that the complainant motioned with the knife, he was just standing and he observed him spitting. He was not aware that the line had speeded up .He had submitted a report to Mr HSM when requested.

Evidence of Mr HSM (Health and Safety Manager)

Mr HSM undertook the investigation into the incident on January 8 as Health and Safety Officer .He met with the complainant with his daughter, where he confirmed that he had been provoked by Mr K which ended up as an altercation, where he made a gesture which was not spitting. One other worker in the offal room had not seen anything when asked. He met with Mr K separately.

Mr HSM submitted that he had two clear statements in front of him accompanied by an admission of an altercation by the complainant .He decided that the complainant had a case to answer and recommended the Disciplinary procedure should follow.

During cross examination, he confirmed that he learned of the incident from the production manager, Mr PS, who phoned him. He told him that the complainant had spat at Mr K. Mr HSM asked how things were afterwards and he was told “things were calm” and Mr PS had approached both men and “things had blown over “.

He established that another worker had heard Mr K call the complainant a Gypsy during that day .Mr HSM was aware that Mr K and the complainant did not get on but nothing had been reported .He confirmed that the complainant adopted a static presence on the floor and it was Mr K who was mobile and he normally entered the filled bins into the Lift area. He confirmed that the complainant did not receive a copy of Mr V’s translated statement in advance of the disciplinary hearing.

The issue of alleged name calling by Mr K was investigated in a parallel process.

Evidence of Mr GM, General Manager.

Mr GM conducted the disciplinary hearing in the company of Mr HSM, and a note taker. The complainant was accompanied by his wife .Mr GM had received the results of the investigation and had formed the opinion that it was a very serious matter.

He outlined the findings of the investigation to the complainant and asked for feedback .The complainant denied the spitting episode, saying that he came close to it but didn’t spit at Mr K. He confirmed that he had been called names by Mr K previously, but not on January 8. He submitted that he had been provoked.

Mr GM submitted that he was responsible for 250 employees. The plant had not had a dismissal over the past five year’s .In his consideration of the case; he was struck by the aggressive action, on behalf of the complainant, which demonstrated a loss of control and it was “still on his mind”. He considered that neither Mr K or the complainant had made a complaint in respect of any behaviour .His consideration of safety was paramount and all possible sanctions were considered inclusive of a written warning and suspension .He was mindful of a previous event in another plant where a stabbing had occurred and was apprehensive of the consequences of a Physical assault where knives were involved.

Mr GM was worried regarding the significant loss of control exhibited by the complainant. He felt the reality of the situation pointed to 2 witnesses to the assault, an injured party and a loss of control over an extended period of time .He felt that he had no alternative outside the sanction of dismissal. He had to consider the long term risk for the plant.

During cross examination, Mr GM confirmed that he first learned of the incident on January 9 as he was away the previous day .He confirmed that the complainant was not provided with the result of the investigation prior to the disciplinary hearing .He confirmed that he had no knowledge of Mr K hiding the complainants knives or wetting his apron .Mr GM submitted that he believed that the complainant had an ample opportunity to report these matters but did not.

Mr GM confirmed that he not placed any weight on the complainants stated depression in his consideration of the case .He had cause to action one dismissal at the plant, five years before .

Evidence of Mr GHR (Appeal Hearing)

Mr GHR was responsible for 6 respondent sites in Ireland encompassing 2,500 employees. The company had a good relationship with the Union at local level. He conducted the appeal hearing on 29 March, 2016.

He prepared for the appeal hearing by visiting the plant and meeting with the people involved .He formed the view that it would have made more sense for the complainant to move the bin forward after the event.

He recalled the appeal hearing, where the complainant was represented by his Union, based on four submitted points of appeal and had not denied spitting or motioning towards Mr K and on that point, the decision to dismiss warranted upholding. He contended that it was fortunate that Mr K had walked away during the altercation, an extreme action, thus avoiding an escalation.

During cross examination

Mr GHR confirmed that the complainant was afforded natural justice through the investigation; he was given an opportunity to test the evidence, which was translated into his own language. Suspension was not considered as the incident had not been witnessed by his Supervisor .He was concerned that the complainant had not responded when asked was there a better way to manage the bins which led to the incident on January 8? .The action constituted gross misconduct as spitting was prohibited in the company hygiene policy . He had set out his findings by letter following the appeal hearing.

In conclusion, the respondent submitted that the complainants actions on January 8, 2016 must be judged effectively as a clear act of aggression and horse play resulting in a dangerous process .The complainant was afforded fair procedures and full right of representation .The appeal of the dismissal was upheld .The respondent wished to rely on the case law submitted to emphasise the fairness of the dismissal. The respondent contended that there were clear obstacles to re-engagement/re-instatement given the action decided as gross misconduct.

Complainant’s Submission and Presentation:

The complainant is a Romanian national and had worked at the plant without incident from 2008 .His role concerned emptying product and transferring it into bins. He recalled 8 January 2016 in or around 3- 3.30 pm ,when there was meant to be two bins placed at his table and only one was ready .The line had speeded up and his bin had filled up and he had placed the bin on the table awaiting collection .

Mr K was not visible to the complainant, so he shouted for him to come and collect the bin as the place was noisy. Mr K approached the complainant in a rush and began swearing at him saying this is your duty, Gypsy. After this, the complainant pretended a spitting action at Mr K but he did not spit. There were other occasions during breaks where Mr K, a Polish national had referred to him as a Gypsy also, had taken his knives and wet his apron. The complainant had made reports to his supervisor but no management plan was in place for this.

He submitted that he was not in a position to grab another bin as the other bin was of a different category, height and used for a different product. He was concerned as he was down a bin and the line had speeded up from 37 to 45 in measurement.

The complainant submitted that he came to work on January 11, he had a sore back and he went home .He proceeded on medical leave. He was on leave when he received a letter at home. He was shown Mr Vs’ translated statement and he was asked to write a statement .His daughter   accompanied him to the investigation meeting.

In advance of the meeting with Mr GM, he was not given a statement from his colleague or a copy of the investigation report. He wasn’t told anything about Mr HSMs role just Mr V.

The complainant denied threatening to hurt Mr K; He had not received copies of any company policies. His only knowledge of Health and Safety was a recent training module on moving and handling .His contract was signed and updated since his commencement in 2008.

During cross examination, the complainant confirmed that he had carried out a spitting motion, he was irritated by the speed of the line and was fed up .He confirmed that he had lost his temper but did not spit. He put forward an alternative scenario, stating that his gloves were old and wet and drops may have fallen from these gloves .He confirmed that he raised his left hand as the knife was placed in his right hand but he kept it back. He knew not to show the knife. This differed from Mr V’s version of events. He had difficulty with Mr V’s instructions on how he was to cut the product

The complainant submitted that Mr K kept swearing at him, he agreed that it was not appropriate to spit but proportionate to how Mr K was treating him. He had worked with Mr K for 3 years and he had several complaints about him, but did not know which direction to take them in. He had told Mr HSM that the rail had got faster and was unhappy with this.

He confirmed that he had received training at the company and was given documents that he understood in relation to his employment .He contended that he suffered with his back and was unable to look for work or mitigate his loss.

He confirmed at the hearing that he was a member of the Romanian Gypsy grouping .He did not pro offer a response to Mr GHR’s suggestion on an “efficiency model” on the proposal on re-siting of the bins. He did not advance a plea for his job and left this to his Union. The complainant contended that a written warning or two weeks suspension would have been an acceptable sanction, whereas dismissal was a disproportionate measure. He had not received feedback on his allegations against Mr K. He understood the procedures adopted by the company following January 8 .He were nervous. The medication helped him put Mr K from his mind. He sought Union advice during the case and he understood that he was advised by the Union to attend the meetings alone.

In conclusion, the complainant’s representative submitted that the complainant was adamant that he had not spat and instead it was a spitting motion. The sanction of dismissal was disproportionate as there was no evidence that the presence of the knife constituted a danger. The complainant was allowed to remain at work in the immediate aftermath of the incident as his direct supervisor did not address the issue as being of a high level of seriousness in the immediacy. He also worked on January 11^th.

The complainant had concerns regarding the procedures used by the respondent .He was not in possession of all documents and was not given the findings of the investigation in advance of the disciplinary meeting on February 1, 2016.The complainant contended that Mr GM had pre determined the outcome of the process . The complainant submitted that some level of sanction was in order but not dismissal. There was not also the residual matter of the complainant’s contention of provocation which was not followed up by the respondent, nor was feed back given to the complainant. He was not permitted to cross examine the witnesses.

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 given consideration to the oral and written submissions of the parties in addition to the evidence adduced by the witnesses. The claim is one of Unfair Dismissal.

Conclusions of Adjudicator:

There were a number of issues which struck me on this case from the outset. At the time of the dismissal, the complainant had worked for the respondent for an 8 year period without incident. This was not disputed by the parties.

I was also struck by the absence of an official Incident/ Near Miss form encompassing the event that took place in or around 3 pm on January 8, 2016. This may be explained in part by the fact that the chief witness was an external employee and the production supervisor was not present at the time of the incident .I find the presence of a real time record of the event may have assisted the parties . I say this, partly in response to representations from the complainant on the approach of adopted by the production manager in the immediate aftermath of the event and the divergence in that approach subsequently adopted by the respondent during the investigation. The respondent is a highly reputable company; I would have expected this simple real time record to be in existence. It was not disputed that the Production Supervisor calmed the complainant and Mr K in the aftermath of the altercation and informed them that they would continue to be observed by the respondent. It is of significant note that neither Mr K nor the complainant lodged any grievance in relation to interpersonal conflict between them on or before January 8.

I was also surprised by the complainant’s reticence to address the aftermath of the January 8, through representation outside family support .This was , of course his prerogative , however , I am satisfied that he was offered representation at all junctures of the investigation and disciplinary procedure by the respondent .

Section 6 of the Unfair Dismissals Act 1977 outlines:

 Unfair dismissal as

6. — (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4) of the Act provides: Without prejudice to the generality of subsection(1) of this section ,the dismissal of an employee shall be deemed , for the purposes of this Act , not to be an unfair dismissal , if it results wholly or mainly from one or more of the following :

1. Capability, Competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.

2. Conduct of the employee.

Section 6(7) without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer

( b ) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in S.14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of S.7(2) of this Act.

I must examine this case to assess whether there were substantial grounds justifying the decision to dismiss and in relying on S.6 (7) whether the decision taken was within the band of reasonableness? , being careful not to insert my own views on the rightness or wrongness of the complainants or respondents actions. Looney V Looney (UD 843/1984)

In Reilly V Bank Of Ireland [2015] IEHC 241.Noonan J at para 56 set down a useful path for me to proceed on:

In assessing the reasonableness of the employer’s conduct in relation to the dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response

I found that the respondent engaged in an investigation into the events of January 8^th, 2016.I am satisfied that the complainant was presented with an opportunity and time to develop a response to the letter of invitation of January 21, however, I observed that of the three statements prepared to inform the investigation, only one, Mr Vs’ statement was translated into Romanian. I was not shown the statement made by the complainant .It seems to me that the complainant was not given the statements of Mr K or Mr PS before the investigation or subsequent to it as Mr Ks statements is remarked on in the investigation report as being on file and not referenced as being put to the complainant. I could not establish whether the complainant’s version of events as compiled by his daughter on his behalf was put to Mr K or indeed Mr V. I note that the complainant was on sick leave from January 11, 2016, but there were no stated impediments to his attendance at meetings.

I note the complainants representatives insistence that the outcome of the investigation ought to have been shared with the complainant prior to the announcement of the disciplinary hearing in tandem with the report given to the General Manager, however, on a careful analysis of the documentation submitted by the respondent, I note that the invitation to the meeting of January 25 was for:

“The purpose of the hearing is to set out our findings of the investigation into an alleged serious incident that occurred on 8 January, 2016”

The purpose as highlighted was to be expected as sequential to the completion of a work based investigation by the respondent .I had, however difficulty with this meeting changing course into a full blown disciplinary hearing meeting without a line of demarcation present. I accept the complainant’s representative pointed that the path set out in the company procedures was a reliance on paid suspension prior to the activation of the company disciplinary procedure and this was not practised in this case. However, the complainant was on medical sick leave from 11 January and in receipt of some amount of sick pay prior to his dismissal.

I was struck by the forth-right presentations from Mr V, Mr HSM and Mr GM at the hearing. I found them to be very credible witnesses and genuinely worried about the impact of the complainant’s behaviour on the respondent plant .In particular, I was struck by the very honest account given by Mr GM following the complainants evidence that he was actively listening to the complainants presentation at the disciplinary hearing for reasons for the complainants behaviour and confirmation that he had not spat. He was clear that he did not hear anything outside provocation and a reference to depression. He discounted provocation on the day of 8 January and confirmed that he had not placed any weighting on the depressive illness relied on by the complainant.

I can accept that the respondent had a substantial reason for the decision taken to dismiss the complainant on safety standards and I can see the application of Creed V KMP and O Mahony in that decision, however Creed, O Mahoney and White predated the 1993 amendment to the Unfair Dismissals Act which allows the Adjudicator to consider reasonableness and adherence to codes of practice in assessing reasonableness.

I can also appreciate the respondent application of Parelli to the case, albeit the circumstances are slightly distinguished .I can accept” that the company held a reasonable belief and suspicion that the claimant was involved and that grounds existed to support such an honest belief in the absence of an adequate explanation from the claimant” .

I find that the respondent acted in good faith in arriving at a reason to dismiss the claimant; again, I was particularly taken by the evidence submitted by Mr GM in that regard. He was considering the welfare of the plant and the 250 staff in his contemplation of an action plan.

However, as stated I am less re-assured by the application of the procedures adopted in this case, in particular the navigation of a feedback from an investigation meeting into a full blown disciplinary hearing on February 1. In a recent Bar Review 2016, (21) 6 pp 180 -183, article written by Peter Ward SC, he stressed the importance of fair procedures being underpinned by:

“Opportunity and time to develop and present a defence

“The Code of Practice on Disciplinary Procedures, S.I 146/2000, provides guidance on the operation of Disciplinary procedures:

The code states that the procedures applied must comply with the general principle of natural justice and fair procedures, which include that:

The details of the allegations or complaints are put to the employee concerned;

The employee concerned is given the opportunity to respond fully to any such allegations or complaints

3 That the employee concerned has the right to a fair and impartial; determination of the issues concerned, taking into account any representations made by or on behalf of the employee and any other relevant or appropriate evidence, factors or circumstances.

4 These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaints be given or that the employee concerned be allowed to confront or question witnesses.

By the two in one approach of holding a feedback meeting swiftly overtaken by a disciplinary hearing, I find that the complainant could not avail of this branch of fair procedures. He was, after all, at that juncture a lay litigant who had had only one key witness statement translated into Romanian language and was in the presence of family members not versed in representation skills. Throughout the hearing, I found the complainant to be vague and quick to move his thoughts to mitigation as a first step rather than giving a bird’s eye account of his version of events. He accepted that an altercation had taken place on January 8 but he emphasised the external causative factors of provocation and depression rather than his feeling of being overwhelmed by the production line recalibration. He did not produce any medical evidence at the hearing other than his statement that the medication assisted him in keeping away the upset he felt by Mr K.

I note that the respondent confirmed that he had not taken advice prior to moving to the confirmation of the termination of employment on February 1. I also note the swiftness of the decision within 24 hours of the disciplinary meeting. I find that this time span was overly swift and could not have allowed ample time to reflect on or consider the submissions made. I note in particular that the complainant had not sighted Mr Ks statement in advance of the disciplinary hearing. This had a clear reference to an allegation of threaten harm by the complainant, which remained in possession of the respondent without a right of reply by the complainant.

The respondent submitted that the breach of company procedure was known by the complainant. However, I am mindful of the case of Patricia Heffernan and Dunes Stores UD 1355/09, where the EAT determined a dismissal in relation to the staff use of a loyalty card as unfair:

The respondent pointed to their own handbook as being the source of the rules and practices appropriate to the workplace. The reference to the misuse of the value club card is unavoidable therein but the proposition that all employees know the content of the handbook inside out and refer to it daily is not sustainable. The onus is on the respondent to update and remind employees of what is expected of them in the workplace at staff meetings, circulars and through notifications on staff notice boards.

In Creed and O Mahony, there was a strict liability rule in relation to fighting in the workplace. The respondent has placed a lot of emphasis in their presentation to the hearing that it was universally understood that spitting was prohibited at the plant.

It is unclear when the complainant was advised of the respondent policy as the document I received was referred to as “Revision 4 “and was undated.

I did forward the staff handbook to the complainant’s representative for comment and received the response on March 18, 2017. The complainant’s representative stated that her client had not been provided with a copy of the handbook. She added that her client’s daughter recalled translating the Statement of Terms of Employment and it followed that every other associated document should have been translated.

I considered a relevant clause in the 2008 Statement of Employment which was translated for the complainant.

“The company works rules and conditions …..contains information about the company, your workplace and other matters .As you are bound by the contents of the works rules and conditions you should read and understand that information therein “

I am therefore , satisfied that the complainant was on notice of a set of rules governing his employment as the Grievance and Disciplinary Procedure was cross referenced on the statement . In addition, I am satisfied that the complainant understood the procedures surrounding the disciplinary process as evidenced at the hearing and through the activation of the appeal process.

I wish to remark briefly on the Appeal hearing, where the complainant was represented by his Union. In contrast to the Disciplinary hearing, there was an extended delay in both submission for the Appeal and the outcome of the appeal. I note that that there was no reference to gross misconduct in this process. Yet, at the hearing, Mr GHR identified the complainant’s behaviour as gross misconduct. I find that while the respondent placed the complainant on notice that the matter under consideration was serious and warranted consideration of sanctions up to an including dismissal. I find that the complainant was not aware that he was facing a charge of gross misconduct and again , I find application for Reilly V Bank Of Ireland in this case, where Noonan J remarked that a zero tolerance policy on behalf of the respondent should have been notified to the complainant . I am not disputing the clear entitlement of the respondent to have a set of rules governing their business, I am merely remarking that I could not establish evidence of just where this was discussed or emphasised by the company.

Not withstanding, my finding that substantial grounds prefaced the decision taken to dismiss in this case, a decision taken in good faith, I have identified a number of procedural shortfalls in the summary dismissal.

1 Demarcation of Procedures i.e. investigative feedback conjoined with a disciplinary meeting which compromised the complainants’ access to fair procedures. I found that the company’s procedures lacked natural justice in the utilisation of the witness/supervisor statements which were to the detriment of the complainant. Bobrecki V Auto launch ltd UD/117/2015 applied .

2 A lack of clarity on a zero tolerance policy and resultant consequences of spitting.

3 An over zealous time line associated with the decision making taken to dismiss the complainant , not withstanding that the complainant was on sick leave at the time and did not present as a immediate danger .

I find, therefore that the respondent acted unreasonably in the execution of an unfair procedural framework which accompanied the decision taken to dismiss the complainant, which was not remedied on appeal. I have, however, also found that the complainant made a substantial contribution to his downfall.

Redress:

The complainant submitted that he had been medically unwell up to and including the day of hearing, November 2, 2016 and was unable to seek work or to mitigate his loss. The complainant also confirmed that he was not in a position to return to the plant.

In accordance with Section 7(2) of the Unfair Dismissals Act 1977-2007, I award the sum of four weeks pay in compensation to the complainant €1,624.56.

Dated:   22 March 2017