ADJ-00002903

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00002903

Parties:

Complaint:

Date of Adjudication Hearing: 19/09/2016, and 13/03/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, and Section 8 of the Unfair Dismissals Acts, 1977 – 2015, 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, a Lithuanian national was employed with the Respondent from 8 March 2004 as a Bobcat Driver. His gross pay was €11.27 per where he worked an average of 44.43 hours per week.

The Complainant submitted that he was unfairly dismissed on 18^th December 2015 following an unfair disciplinary procedure.

Summary of Respondent’s Case:

The Respondent submitted that in November 2015 the Complainant had been issued with a final written warning for negligence, unacceptable behaviour, and misuse of company equipment. It maintained that this warning was in accordance with the Respondent’s disciplinary procedure and had a currency of two years.

The Respondent maintained that on 11^th December 2015, at a Christmas function in a hotel organised by the Respondent, an altercation occurred between the Complainant and another employee. On 16^th December 2015, the Complainant was suspended with pay pending an investigation when he was invited to an investigatory meeting on 17^th December 2015. The Respondent maintained that the Complainant was reminded of his right to representation and was given a copy of the company’s disciplinary procedure at that time.

The investigation meeting was attended by the Complainant, his representative, the site manager and the Respondent’s HR officer. Minutes of the meeting were taken where the Respondent maintained the Complainant admitted to hitting his co-worker on several occasions. The Respondent also maintained that it interviewed other witnesses, and the other party to the fight who was also placed on paid suspension at the time. The site manager concluded that there was a case to be answered and passed the issue to the head of operations for disciplinary action.

A disciplinary meeting was held on the 22^nd December 2015 where the Complainant attended the meeting with his daughter in the capacity of a translator. The Head of Operations and a HR representative of the company attended the hearing. Minutes of the meeting were produced. The Respondent maintained that the Complainant was advised of his right to representation but he opted to proceed without it. The Respondent submitted that the Complainant freely admitted to hitting his colleague a number of times and the disciplinary meeting was adjourned. In light of the on controverted admission of guilt, the decision was taken to dismiss the Complainant for gross misconduct. The Complainant was advised in writing of this decision on 23^rd December 2015. When the Complainant was being advised of the decision he was also reminded that he was on an extant final written warning. He was advised of his right to appeal but he failed to do so.

The Respondent submitted that the decision to dismiss was based on the Complainant freely admitting that he struck a co-worker several times until he fell to the ground, apparently bleeding. The Respondent maintained that the physical aggression in the workplace is unacceptable under any circumstances, and is the very first item on the company’s list of offences that can be considered as gross misconduct. The Respondent submitted that the incident took place at a company sponsored event and precedent [Keane v Westinghouse Electric Ireland Ltd] has determined such issues have been deemed to have workplace nexus. The Respondent further submitted that the Complainant was afforded his rights and entitlements, due process, and natural justice which included full and independent investigation where he had a right to be represented ,and where he was given an impartial disciplinary hearing, including an appeal process. The Complainant did not appeal the decision. The Respondent therefore maintained that in light of the facts of the case that the decision to terminate was fair and reasonable under the circumstances.

Summary of Complainant’s Case:

The Complainant submitted that he was a Lithuanian national who cannot effectively communicate in English without assistance of an interpreter. He maintained he has been a dedicated and loyal employee of the Respondent’s company for 11 years.

The Complainant confirmed that he attended the Respondents Christmas function that was held at a hotel on 11^th December 2015. He advised that there were other unconnected companies also attending the same function at the hotel. In this regard, he argued that the Respondent did not have exclusive possession or control over the event.

The Complainant advised he attended the function early in the evening and was accompanied by his wife. He submitted that the night passed without event until other employees arrived at around 11 PM in an intoxicated state. He expressed concern that these work colleagues were allowed to gain entry to the function, and where he had grave concerns that the colleagues could have been permitted to enter the premises in such an intoxicated state. The Complainant submitted in his evidence that he asked one of the intoxicated work colleagues to leave in five minutes, but that he did not issue any threats to this person at that juncture. The Complainant submitted that he was motivated about the safety of other attendees because he had heard from another colleague that one of the employees who were intoxicated had subjected a work colleague to serious verbal and physical abuse. As this abuse continued in the function room the Complainant said he insisted the intoxicated colleague leave, and in so doing he was not aware that he was bound in the same manner as he would have been had the event occurred at work. He therefore maintained he cannot be blamed for his actions in circumstances where it had not been explained to him properly, or at all, that his behaviour at the function could lead to his dismissal. The Complainant acknowledged that he struck his work colleague. The Complainant maintained that his actions on the night were motivated in doing the right thing by ensuring that other persons at the function did not have their night destroyed by the intoxicated behaviour of his work colleague.

The Complainant advised that on his return to work on 16^th December 2015 he was informed verbally that he was being suspended and that he was required to attend an investigation meeting the next morning. The Complainant submitted that it was not explained to him that the process that had been commenced could ultimately lead to his dismissal, and he also maintained he was not informed of his right to have the complaint details put before him in writing. He further argued that he was not at all understanding of the gravity of the situation he was now facing.

The Complainant contended that as the investigation meeting took place a day after his return to work he had no time to organise any proper defence to the allegations being made against. He further argued that the Respondent only interviewed himself, another colleague, and the member of staff who he had struck. He was subsequently advised that he was to attend further meeting on 22^nd December 2015, some five days later. He argued that the purpose of the first meeting had not been properly explained to him, and he maintained that he was not provided with a copy of the memos of the meeting notes from the investigation meetings held by the Respondent at that time.

The Complainant submitted that he attended a second meeting on 22^nd December 2015, again contending that he had not received any notes of the previous meeting. He maintained that the purpose and a possible consequence of the second meeting were not explained to him. He advised there was no interpreter provided by the Respondent, and he was not informed of his right to representation, nor was there any representative present. Furthermore, the Complainant submitted that he was required to rely on his 18-year-old daughter, who was a schoolgirl with limited ability to communicate in English language, to act as translator. It was submitted that his daughter did not possess any knowledge or appreciable understanding whatsoever of the disciplinary process that her father was been subject to. The Complainant maintained that the disciplinary process took 15 minutes and following the process he was advised that he was to be dismissed.

The Complainant therefore submitted that the Respondent did not act reasonably in that the nature and extent of the enquiry carried out by the Respondent prior to the decision to dismiss the Complainant was not clearly articulated, and the conclusion arrived by the Respondent to dismiss the Complainant was based on information resulting from a limited inquiry. The Complainant maintained that when he subsequently obtained legal advice he became aware of his rights as an employee and accordingly maintains that he was unfairly dismissed contrary to the Unfair Dismissals Act 1977 to 2007.

The Complainant maintained that the decision to dismiss him was flawed as it was contrary to clauses 17.2 and 23.1 of his contract of employment. Referring to clause 17.2, the Complainant argued that the list of behaviours that are identified as reasons for termination only contains a closed list of reasons, and where there is no specific reference made to gross misconduct within that closed list. He therefore maintained that the onus was on the Respondent to have had his contract drafted with sufficient clarity if they expected to apply the terms. The Complainant argued that the Respondent should be estopped from inputting meanings other than those which are clearly expressed within his contract, and stated this was even more relevant where he was not an English speaker and cannot fully understand the content of this contract. The Complainant further submitted that the contract does not expressly allow for gross misconduct to be deemed a reason for summary dismissal which was the sanction imposed upon him.

The Complainant also submitted that clause 23.1 of his contract of employment which states “both parties agree that this contract overrides and supersedes all bracket (if any) previous offers, understandings, representations and/or agreements with the company concerning the terms and conditions applicable to your employment” meant that legally the Respondent was prohibited from drawing reference to any additional documents or representations reported to have been made in order to justify the disciplinary process applied, and the sanction of summary dismissal imposed on the Complainant. The Complainant argued that clause 23.1 limited the Respondent from relying on any representation other than those provided for in the contract of employment.

The Complainant maintained that the disciplinary procedures invoked did not comply with the requirement of fair procedures in that the Complainant was not provided with comprehensive details of the nature or extent of the allegations he faced; that is the contract of employment was not provided in the Complainant’s native language; that the Respondent failed in their obligations to provide him with a proper understanding of the procedures, and failed to translate the minimum information to allow him effectively meet the allegations being levied against him. He also maintained that the Respondent failed to explain the seriousness of the process and the possible sanctions he was facing. As the Complainant has an inability to communicate effectively in English particularly in matters of a technical legal nature, the Complainant maintains the procedures were not fair as envisaged by article 40 of the Constitution, and article 6 of the E.C.H.R.

The Complainant further maintained that the Respondent neglected to interview another party would witnessed what occurred and failed to attempt to obtain CCTV footage that could have clarified precisely what occurred at the incident. Similarly, the Complainant argued he was denied a right to have reasonable time available to him in order to contact witnesses, to seek objective advice, to consult with a representative or competent person in order to prepare a proper defence. He argued that had he been provided with these rights he would have been able to call witnesses that could have supported his account of the incident, but he was not permitted to do so. He similarly argued that he was not provided with an explanation of the outcome of the first hearing but was simply instructed to appear again within five days which occurred at the time during the lead up to Christmas and where the sequence of events have removed any fair opportunity for him to properly evaluate and effectively rebut the evidence against him. The Complainant argued that the Respondent’s own records of the meetings held on 22^nd December 2015 confirmed that the Complainant was uninformed as to what had occurred at the previous meeting and whilst having full knowledge of this continued to progress with the disciplinary hearing, describing it as a kangaroo court which consequently dismissed the Complainant. It was argued that as the disciplinary hearing progressed without a proper interpreter, and without providing the Complainant with proper representation, that the dismissal was merely an a fait accompli.

The Complainant submitted that he was issued with his termination letter on 4^th January 2016 and the letter failed to provide him with the reasons for his summary dismissal, and further failed to inform the Complainant whether or not there was an internal appeal process available to him.

The Complainant also maintained that the proportionality of the sanction imposed upon him was unfair. Setting out that he attended the function to enjoy the Christmas festivities with his wife, he did not realise that he would be subject to contractual obligations at the function. In this regard, he again maintained that the Respondent failed to communicate that important fact effectively or to its Lithuanian national workforce or other foreign nationals which it employed. He also argued that he was one of three persons directly involved in the incident it is the only party that has suffered with regard to a summary dismissal from his employment. He argued that the sanction was disproportionate given the very particular circumstances prevailing at the time. He also argued that the colleague he struck did not make any formal complaint about the incident itself. He argued that he was honest in responding to the issues when confronted by the employer but none of this was taken on board by the Respondent in making its decision.

The Complainant advised that since his dismissal he has sought alternative employment and was successful in gaining new employment on 18^th January 2016, however he submitted that he was taking home some €74 less per week, and also had to drive some 110 km a day which cost him an additional €60 per week. As such the Complainant maintained that he continues to lose €134 week since 18^th January 2016.

The legal arguments presented by the Complainant included reference to Employee v An Employer UD2413/2009 where the Tribunal maintained that regard should be had to the reason of the employer’s decision to dismiss which should include the nature and extent of the enquiry carried out.; and in relation to the case within he argued that the Respondent had failed to act reasonably. With reference to the specific needs of non-national workers, the Complainant referred to Campbell Catering Ltd V Rasaq EED048, where the Labour Court stated in the case of disciplinary proceedings, employers have a positive duty to ensure that all workers understand what is alleged against them, the gravity of the alleged misconduct, and the right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilities and guidance in making a defence. The Complainant contended that he was not afforded this opportunity.

The Complainant further referred to the case of 58 Named Employees v Goode Concrete Ltd DEC-E2008-20 which again referred to the special measures which may be necessary when dealing with non-national workers, and where Goode Concrete Ltd had translated company documentation into a common language (Russian). The Complainant therefore maintained, consistent with the Equality Officer’s findings in the above case, it was not unreasonable to expect the Respondent to provide the contracts in Lithuanian, or failing to provide a translator. The Complainant also referred to Russell V Duke of Norfolk (1949) AII ER 109, and Cassidy V Shannon Castle Banquets [1999] IEHC 245 regarding the application of fair procedures; and Dublin Airport John Graham V Newlands Cross Hotel T/A Bewleys Hotel UD886/2012 relating to the provision of CCTV footage.

Findings and Conclusions:

In accordance with Section 6(1) of the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.

S6(4)(b) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6(6) of the Unfair Dismissals Act 1977 and where it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in S6(4) of the Act, or that there were other substantial grounds justifying the dismissal.

In addition S6(7) requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (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 section 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 section 7 (2) of this Act.”

I must therefore consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted.

In the case within the Complainant has argued that the decision of the Respondent to dismiss him was unfair as the procedures adapted by the Respondent did not have sufficient regard to his lack of proficiency in the english language and therefore he was neither aware that the action of striking a work colleague at a social event could amount to his dismissal, or that his contract of employment indicated such an action amounted to gross misconduct. The Complainant also argued that the investigation conducted by the Respondent was not sufficiently thorough, was flawed in that it failed to provide the Complainant with the evidence gathered by the investigation that was conducted prior to a disciplinary hearing, that at the disciplinary hearing the Complainant was not provided with a translator, and where the disciplinary hearing only took approximately 15 minutes to conduct its business.

In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides that the procedures for dealing with disciplinary issues (reflecting the varying circumstances of enterprises/organisations), must comply with the general principles of natural justice and fair procedures. The contractual and constitutional rights to fair procedures are also well established (in Haughey [1971] IR 217); and in addition where juris prudence has established other procedural obligations for an employer, particularly where foreign nationals are employed. Applying the aforesaid legal principles and statutory provisions to the facts adduced, I find as follows.

Having reviewed the evidence submitted by the parties I am satisfied that an incident did take place at a company sponsored Christmas function on 11^th December 2015 and where the Complainant has acknowledged he struck a work colleague. As such the action to move to dismiss the employee occurred wholly or mainly from the conduct of the employee. I’m also satisfied that at the time of the incident the Complainant was on a final written warning for a non-related workplace issue.

However, the Complainant has argued that he was not afforded a fair procedure and that he did not fully understand the procedures he was participating in, both at the initial investigation and the subsequent disciplinary hearing. It is also maintained that he did not understand the potential consequences of his actions, and where his contract of employment was not sufficiently specific to afford the Respondent the right to dismiss the Complainant on the basis of what occurred was gross misconduct. The Complainant has therefore raised concerns regarding the reasonableness of the conduct both by act and omission of the Respondent in relation to the dismissal, and the extent of the failure of the Respondent to comply to fair procedures.

In relation to the matter regarding the contract of employment I am satisfied that the contract sufficiently identified the issues that can lead to a termination of employment, which includes misconduct – serious or persistent; and where a reference to gross misconduct is also made in the contract regarding termination of employment. The contract also identified that it overrides and supersedes previous agreements concerning the Complainant’s terms and conditions applicable to his employment. It is therefore evident that the clauses in the contract referring to termination, particularly in relation to serious misconduct apply, and where gross misconduct is also referred to.

However, a review of the contract confirms that there is no specific definition of gross misconduct, and where reference to gross misconduct refers to another clause in the contract (18.1); but it appears reference to this clause is out of context and does not make sense. Accordingly, it is acknowledged that it would be particularly difficult for a non-native English speaker to make sense of what in reality is meant by gross misconduct, and where any reference to gross misconduct in the contract might be confusing for the Complainant to understand. Despite this misnomer, it is an obvious conclusion that the striking of a fellow worker is serious misconduct, and where it is well established that it can be deemed to be so at work sponsored social events. On that basis, I do not find the Respondent has strayed from its contractual obligations and rights towards the Complainant.

Evidence presented at the hearing confirmed that the Complainant did strike a work colleague at a Christmas function on the evening of 11^th December 2015. This matter is not in dispute. It is reasonable to conclude that striking a colleague at a work organised function would be deemed to be a matter of serious misconduct, and would likely lead to disciplinary procedures up to and including dismissal. However, the Complainant had contended that as it was a social event he was not aware that what happened at the event could lead to disciplinary procedures, particularly as he had never been made aware of this fact, and as a foreign national he would not have been aware of this unless he was directly told, which he was not.

Evidence presented at the hearing indicated that following the incident the Complainant was met by the HR officer who issued a suspension letter on 16^th December 2015, and where the letter outlined the basis of the decision advising the Complainant that there were allegations of gross misconduct in that he committed unacceptable/inappropriate behaviour, and that he also deliberately struck a colleague on 11^th December 2015 at work organised event. This letter advised the Complainant that the outcome of an investigation could result in disciplinary action up to and including dismissal. The letter also advised the Complainant that he had the right to be appropriately represented at the investigation meeting should he so wish, and where he was strongly advised to exercise that right in line with procedures which were provided to the Complainant at that time. The Complainant had countersigned this letter, and in evidence provided by the Respondent, the HR Officer maintained that matters were clearly explained to the Complainant at that point in time. Furthermore, it is acknowledged that the Complainant had been subject to a disciplinary procedure a month earlier in November 2015, and where he would have had recent experience of responding to a workplace investigation and disciplinary procedures.

The Respondent submitted that a professional translator did attend the initial meeting of 17^th December 2015, as this is confirmed in a copy of the meeting notes that were presented at the hearing within. The evidence also supports that the Complainant, who is a Lithuanian National, has some difficulties in interpreting and understanding English. He was not provided with a competent interpreter during the subsequent disciplinary hearing.

Furthermore, I am satisfied based on the submission and response that the Respondent in conducting its initial investigation did not appear to complete a thorough investigation or call all the witnesses that had observed the incident on 11^th December 2015, and whom if met may have provided the investigation with a fuller understanding of what occurred. Evidence provided at the hearing within has clearly identified a conflict of evidence relating to the incident of 11^th December 2015; shortfalls in the initial investigation regarding the gathering of evidence; and a failure by the Respondent to provide the Complainant with a copy of the investigation notes.

The Complainant has inferred that he was at a disadvantage due to language difficulties and had he been provided with an opportunity to have his case properly heard that mitigating circumstances would have been properly considered. Due to this he maintains he was not provided with sufficient time or adequate opportunity to have a fair hearing. The evidence also supports that despite the Respondent providing an interpreter at the investigation stage it did not do so at the disciplinary hearing. The Complainant attended that hearing with his eighteen-year-old daughter who was still attending school.

Central to providing a foreign employee and non-native English speaker with a fair procedure is the obligation for an employer to adequately cater for potential language difficulties, particularly in serious issues such as a potential dismissal. Precedent has been set in this regard (e.g. EED048 Campbell Catering Ltd v Rasaq). I therefore find that the Respondent has failed to demonstrate that it sufficiently catered for the potential language difficulties that existed, and this is demonstrated by the Complainant attending the hearing with his 18 year old school going daughter who is recorded in the evidence as asking at the meeting “you want to fire him”.

At a procedural level, the Complainant was not provided with the meeting records of the earlier enquiry, and enquiry upon which the fifteen-minute disciplinary hearing was based. Despite not sharing this information with the Complainant, the Respondent opened the disciplinary meeting with a statement explaining that it was a disciplinary hearing to discuss further details of the meeting of 17^th December 2015.

Additionally, the letter of dismissal has the wrong person named in its greeting, and refers to the Complainant’s daughter as a translator, presenting the record of the disciplinary hearing as if a qualified translator was present at the meeting, which clearly was not the case.  

On balance, I am not satisfied that the Complainant can be seen to have had a fair procedure, albeit the striking of a colleague is a serious issue that most probably would lead any reasonable employer to dismiss the perpetrator. In getting to its decision to dismiss, the Respondent failed to cater for the language difficulties that existed, failed in its obligations to provide adequate translation facilities, and failed to complete a thorough investigation of issues which would have afforded the Complainant with the opportunity to present any mitigating circumstances. It may well be that a more thorough hearing of issues might not have changed matters in light of the admission by the Complainant that he did strike a colleague, but the Complainant was entitled to thorough hearing of matters, and did not receive this. Indeed, consideration was never given to the position that the Complainant contended he was not aware that his behaviour on the night could be used in any subsequent disciplinary action.

Put simply the failure of the Respondent to provide the Complainant with the evidence in the meeting notes from its investigation, failure to properly conduct a thorough investigation of all the available evidence relating to the fracas between the Complainant and his colleague, and the failure to ensure proper translation procedures were in place regarding both the aural and written aspects of the investigation, have all contributed to an investigation and disciplinary process that has fallen short of the standards required, and are now well established practices as set in jurisprudence. I therefore find the procedures afforded to the Complainant by the Respondent were unfair.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977-2015. I therefore conclude that the Complainant was unfairly dismissed by the Respondent in light of the acts and omission of the Respondent in conducting its investigation and subsequent disciplinary hearing

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Section 7(2) sets out the factors which should be considered when determining the amount of compensation and of relevance to this case is the extent to which the conduct of the employee contributed to his losses and the measures adopted to mitigate same.

In circumstances where it is undisputed that the Complainant has stuck his work colleague at a work-related function, and where such action is deemed to be serious misconduct, I am satisfied that the Complainant contributed in no small degree to the circumstances giving rise to his dismissal and consequent losses. As against this, and the flawed procedures he was required to endure, I have to give him some credit for the fact that he had obtained within a matter of weeks of his dismissal new employment, albeit not at the rate of pay of his former employment.

Figures presented by the Complainant indicated his earnings in his new employment to be €445.93 per week amounting to a loss of circa €74 per week plus extra travelling costs to his new employment.

Therefore, I consider it just and equitable in all the circumstances to award the Complainant €3,500, reflecting 25% of the actual losses claimed. The Respondent is therefore ordered to pay the Complainant a total of €3,500 in compensation (subject to any lawful deductions).

Dated:   23/10/17

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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