Complainant

Respondent

Anonymised Parties

A general operative

A wholesale cash & carry business

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-00012938-001

03/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012938-002

03/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00012938-003

03/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012938-004

03/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012938-005

03/08/2017

The respondent is a family-owned, wholesale cash and carry business employing 33 people. The complainant worked as a general operative and fork-truck driver from January 2000 until he was dismissed in June 2017.   He claims that his dismissal was unfair because the response of his former employer to an altercation with a colleague was disproportionate and that, in reaching the decision to dismiss him, the company did not follow fair procedures.

May 4th 2017 – Incident on the Shop Floor

On the day in question, a customer was looking for cases of ketchup that were not in their usual place. The complainant lost his temper when his colleague refused to get the ketchup. We will refer to the colleague as Mr M. In his evidence, Mr M described what happened when the complainant shouted at him to “get the f…ing ketchup.” He said that he responded by saying, “if you asked me, I would get it. You’re not my manager. Who are you?” In response, Mr M said that the complainant threw a box of sweets at him. He said that he told the complainant to “stop insulting me or I’ll report you.”   He went on to describe what happened next when the complainant approached him and started to make boxing gestures around his face, striking him in the eye.

A statement submitted in evidence records that Mr M went to their manager’s office and reported what happened. The manager is one of the four owner-directors of the company. While he was there, the complainant came in and threatened to kill Mr M, referring to him as “f…ing Polish,” and saying, “you should sack him.” The manager instructed the complainant to go back down to the shop floor and told both men to stay away from each other. Mr M said he went back to work but the complainant verbally abused him and asked him to go outside and fight.

Evidence of Mr M

In his evidence, Mr M said that he eye was red and sore from the punch. He said that he had been threatened by the complainant for a couple of years and he had confided in his wife about it. When she saw the injury to his eye, he said that she was upset and they were both very stressed. He said that he had been bullied for a long time by the complainant who threatened to burn down his house and said, “if you report me, you’re a rat.” His wife had asked him to go to the Gardaí, but he said that he didn’t want to make trouble for anyone. When Mr M arrived in work the next morning, the complainant was there and he was called to the manager’s office. As he was leaving the premises, Mr M said that he pointed at him and said, “if I lose this job, I will kill you.”

In cross-examination by Mr Dorda for the complainant, Mr M said that he reported the complainant a few times in the past for bullying. The response of the management was that they were to stay away from each other, and he said that the complainant was sent home a few times. He said that the punch in his eye on May 4th was not an accident. When he went to the bathroom and saw the injury to his eye, he thought, “I have to get help” and he left work. He said that he didn’t want to make trouble for the complainant. He said that the complainant’s brother also works in the company and he said to Mr M, “he’s in a serious situation.” When the complainant made the statement, “if I lose this job, I will kill you,” he said he was terrified. On May 5th, he made a report to the Gardaí.

Investigation into the Incident on May 4th

Following the complainant’s suspension on May 5th, an investigation was carried out by one of the company’s directors, referred to in this decision as Mr J. Meetings took place as follows:

May 12th:   Meeting with the complainant’s and Mr M’s line manager;”

May 13th:   Meeting with a general operative who was in the vicinity of the incident on May 4th;

May 15th:   Meeting with the complainant and his union representative;

At the meeting on May 15th, the complainant was given copies of the statements of Mr M, his line manager and the operative who witnessed the incident on May 4th. He was also given a still photograph from a CCTV clip. On the shop floor, there are a number of visible closed circuit TV cameras installed. The management couldn’t find a recording of Mr M being injured and the clip provided to the complainant and his representative was a record of about 40 minutes afterwards when he returned to the shop floor and is alleged to have asked Mr M to come outside and fight.

At the investigation meeting, the complainant said that before the incident, he believed that Mr M was “winding him up” and giggling at him with another colleague. He admitted that he had been verbally abusive but said that he made contact with Mr M when he accidentally poked him in the eye. He said that Mr M’s allegation that the complainant had threatened to burn his house down was a misunderstanding. He said that the incident on May 4th was a “flash in the pan” and he denied asking Mr M outside to fight.

After this meeting with the complainant, the investigating manager held further meetings:

May 16th:   Meeting with Mr M, who reiterated what occurred on May 4th, and added that a further incident occurred on the morning of May 5th when the complainant threatened to kill him if he lost his job.

May 17th:   Meeting with the complainant’s and Mr M’s manager. The manager said that, when he was sending the complainant home on May 4th, he told him to phone him the next day. He said that the complainant did not phone, and instead, came to work.   The line manager said that he told him that an investigation would be carried out and he was to remain at home on paid leave. This was confirmed in a letter on the same day.

May 22nd:   A second meeting took place with Mr M, at which Mr J put it to him that the complainant had made a reasonable request to him on May 4th, to get the ketchup for the customer.   Mr M said “he didn’t ask me, he aggressively told me to get the ketchup.”   Mr J said that the complainant is saying that he accidently hit him and asked for his response, to which he said, “No, no, it wasn’t an accident.   He was in front of my face, he tried to hit me that was his intention to him me.” Mr M also made a formal statement about the threats he said the complainant made to him on May 5th, when he said that if he was sacked, he would kill him.

May 25th:   Meeting with the customer who was looking for the ketchup. The customer said that the complainant,

“…ordered (Mr M) to get the ketchup for me.Because of the manner of the request (Mr M) was offended. He told (the complainant), please do not talk to me like this. When (Mr M) did not obey the order, (the complainant) walked towards (Mr M) and told him to get the ketchup. (Mr M) seemed to be fearful and I thought that he hid behind (the other operative).   (The complainant) was extremely angry and I have never seen such rage in a workplace before. I did not see what happened next, but I could see that (Mr M) was very fearful and upset. I saw (the complainant) return to the forklift and when I heard him being called to the checkout, he became further agitated. I proceeded with my shopping and (Mr M) returned with the ketchup and he apologised for the incident. When I got to the checkout (the complainant) also apologised for the incident and he seemed to have calmed down.”

May 30th:   Before the meeting with the complainant on May 15th, the directors had not been able to locate CCTV footage of the actual incident on May 4th. Following the meeting, they got expert assistance and found the video record of the incident and invited the complainant and his representative to look at it. At this meeting, they were also given a copy of the customer’s statement as set out above.

On June 2nd, having completed the investigation, Mr J issued a report which was submitted in evidence at the hearing. Finding that the complainant assaulted Mr M on May 4th, Mr J stated:

“On the basis of my findings, I believe this to be an act of gross misconduct and is a grave breach of discipline and warrants a disciplinary hearing.”

Disciplinary Meeting

Mr B, also an owner-director, held a disciplinary meeting on June 12th. The complainant disagreed with the use of the word “aggressive” as he was described by Mr M and the other general operative. He said that the phrase “who are you?” was left out of Mr M’s and the general operative’s statements and he took issue with this, as he said that this was the phrase that provoked him to lose his temper.

With regard to the phrase in the general operative’s statement that the complainant assumed the “stance of a boxer,” the complainant said that this employee hasn’t got good English and would not have used this phrase. Subsequently, the manager who took this statement said that he wrote down “stance of a boxer” when the general operative described the stance and gestures of the complainant at the time of the incident.

With regard to the incident on May 5th when Mr M said that the complainant threatened to kill him, the complainant said that this should not have been taken seriously, as “it was not meant in that way.”   In any event, at the investigation stage of the process, a decision was made by Mr J that this threat would not form part of the disciplinary meeting, as the evidence was inconclusive.

Following the disciplinary meeting, the director dealing with the matter concluded that the complainant verbally abused and assaulted Mr M and he was dismissed for gross misconduct and a grave breach of discipline. The complainant appealed the company’s decision to dismiss him and following an investigation by an external investigator, the dismissal was upheld.

The Respondent’s Position

It is the position of the respondent that the complainant was dismissed wholly and mainly because of his conduct. In accordance with section 6(4)(b) of the Unfair Dismissals Act 1977 (as amended), they contend that the dismissal was not unfair. On May 4th 2017, the complainant acted in a manner that was inappropriate and unacceptable, in direct contravention of the company’s policy on Dignity in the Workplace and the collective agreement with SIPTU. His conduct put in jeopardy the safety, health and well-being of a colleague and, as the incident occurred on the shop floor in the presence of a customer, it also put the reputation of the company at risk.

There is a procedural agreement in place between the company and SIPTU which includes “assault on another employee or a member of management” as a grave breach of discipline.   The complainant’s actions on May 4th 2017 were threating and aggressive and impinged on the rights of his colleague and falls clearly under this heading of a grave breach of the company’s disciplinary procedure. As such, their position is that the termination of the complainant’s employment was the appropriate and proper sanction.

Case Law Referenced by the Respondent

In support of its contention that the decision to dismiss the complainant was not unreasonable, Ms McNamara referred to the case of O’Riordan v Great Southern Hotels, UD 1469/2003, which sets out the test for determining that a finding of gross misconduct was not unreasonable.

The well-established principles established by the findings of the Tribunal in Looney & Company v Looney UD 843/1984 were presented by the respondent as a basis for considering this present case, where the responsibility of the Tribunal (and now the adjudicator) is to consider what a reasonable employer would do in the same position as this employer.

Finally, the outcome of Moore v Knox Hotel and Resort Ltd, UD27/2004 was referred to as a decision where the Tribunal found that the claimant’s actions,

“…destroyed the respondent’s trust and confidence …and rendered the continuation of the employment relationship impossible, thereby justifying her dismissal.”

Evidence of the Complainant

In his direct evidence, the complainant said that he was doing a manager’s job because the “managers are never on the floor” and they don’t know what’s going on. During the investigation, he said that he does the work of three people. He said that on the day of the incident, May 4th, Mr M and the general operative were doing no work. He said that he asked Mr M where the ketchup was and Mr M and the general operative were giggling at him. He said that “staff know how to provoke me” and “I got wound up. I lost my temper and verbally abused him.”   He said that during the altercation he said to Mr M, “get away from me before I kill you,” but that this was a hypothetical statement.   He said that he never said he would burn Mr M’s house.

He said that he was irrational at the time and he went up to his manager’s office, and his manager told him to calm down. He said that he approached Mr M, and asked him why he was making such a big deal of what happened and that Mr M said something to provoke him again. He said that his line manager then told him to go home.

Denying that he intentionally hit Mr M, the complainant said, “if I wanted to hit him, I would have hit him.” He said that Mr M approached him with the box of sweets he had thrown and he was gesturing at him and when he raised his hand, he accidentally hit him.

Questioned about previous events, he said that there had been one or two incidents in the past that had been sorted out, but he said that he was never accused of bullying.

He said that as there is no shop steward in the company, he has to speak up for himself.

In response to cross-examination by Ms McNamara, the complainant agreed that he was friendly with the customer who was looking for the ketchup. When he was asked about the statement made by the customer (set out in the previous section) he said that the customer was “in shock because he saw him being a bit aggressive.”   Ms McNamara pointed out that this was inconsistent with the complainant’s earlier statement that he was not aggressive.

There was some discussion during the complainant’s evidence about whether he and his union representative looked for the CCTV footage of the incident on May 4th and Ms McNamara pointed to the complainant’s note to the record of the meeting of May 15th which states: “We didn’t actually view the footage of the incident as requested.” This is the footage that had been requested by the complainant and his representative, but which the management could not locate. However, in response to further questions from Mr Dorda, the complainant said that he didn’t request any footage.

As a result of this conflict in the evidence related to the CCTV records, Ms McNamara questioned Mr J, the director who carried out the disciplinary meeting. He said that at the first meeting with the complainant and his union representative, they looked for the CCTV footage of the incident on May 4th, but the management couldn’t find it. As a result of the request, the company got in an IT expert and the footage of the incident was retrieved on May 25th, following which the complainant was invited to a second meeting on May 30th to examine it.

The Complainant’s Argument that his Dismissal is Unfair

While there was an altercation between the complainant and Mr M on May 4th 2017, the union contends that there is no substantial evidence that the complainant hit him. This appears to be the main allegation of gross misconduct and the issue of verbal assault has been narrowed to the allegation that on May 4th, after the incident on the shop floor, the complainant threatened to kill Mr M.

In his letter on May 5th confirming the complainant’s suspension, the line manager said that the incident would be considered under the heading of bullying and harassment. This position changed however, and the matter was then considered as an issue of gross misconduct.

A still photo taken 40 minutes after the incident was initially presented as evidence, but this was retracted and new evidence was subsequently presented, which, in the opinion of the union, does not substantiate the alleged assault.

Mr Dorda argued that the use of the CCTV footage is a critical flaw in the respondent’s handling of the incident. The investigating manger stated in his report, “I believe CCT (sic) viewed on 25th May 2017 clearly shows (the complainant) assaulting (Mr M).”

It is apparent that there is no agreement between the company and SIPTU to use the available CCTV footage as evidence in disciplinary investigations and the union strongly objected to this and argued that its use is a breach of the Data Protection Acts 1988 and 2003. Under section 2 of the Acts, the law governing the processing of personal data provides that a data controller (the respondent in this instance) must satisfy the fair processing requirements set out under section 2(1), which requires that certain essential information is provided to a data subject before any personal data is recorded. In addition, if a data controller intends to use cameras to identify disciplinary issues, employees must be informed of this intention. To comply with their obligations under the Acts, employers must ensure that a comprehensive CCTV policy is in place.   It is the union’s position that no such policy was in place. Reference was made to case studies of the office of the Data Protection Commissioner to support the union’s position in respect of this matter.

Mr Dorda took issue with the authenticity of the statements of the general operative and Mr M, as he said their statements were very similar. Also, the complainant said that both men were friends and the general operative would be inclined to support Mr M’s version of events. It is my understanding that, following their interviews with the line manager, the line manager wrote up the statements and they were signed by both employees as a true account of what they observed.

Regarding the statement of the customer, the union noted that the customer did not say that he observed the complainant hitting Mr M and that the customer’s statement was not entirely consistent with that of Mr M.

In relation to the allegation of verbal assault, the union argued that the company failed to consider that in the heat of the moment, people tend to exaggerate by making unrealistic threats in an effort to express their emotions. Such exaggerations should be disregarded and not taken seriously. Mr Dorda said that the complainant is not a violent man and that he would never harm anyone. He said that it was extremely unfair to take seriously and literally something said in the heat of the moment.

Case Law Referenced by the Complainant

The union referred to the High Court appeal of James Reilly against the Governor of the Bank of Ireland [2014] IEHC 241 in which Mr Justice Noonan observed that:

“An assessment of the reasonableness and proportionality of the employer’s response 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.”

On the basis that the complainant had been employed by the respondent for 17 years, and that he was a hard-working and committed employee who expressed regret about his behaviour on the day in question, the union argued that the respondent could have imposed a sanction short of dismissal. On this basis, Mr Dorda argued that the dismissal was unreasonable and unfair.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The respondent has referred to Section 6(4)(b) of the 1977 Act which provides that;

“…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 …the conduct of the employee.”

The conduct which resulted in dismissal is the respondent’s belief that the complainant verbally abused and assaulted a colleague. The conclusion reached is that the complainant’s actions amounted to “gross misconduct and a grave breach of discipline.”

The questions to be decided are: Was it reasonable for the respondent to dismiss the complainant and was the process that ended with his dismissal a fair process?

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

As has been established by the EAT in many instances, and specifically in the case cited by the respondent of Looney & Co Limited v Looney [UD 843/1984], it is not for me to establish the guilt or innocence of the complainant. My job is to determine if it was reasonable for the respondent to conclude that the complainant assaulted and verbally abused his colleague and, in reaching this conclusion, was the decision to dismiss him proportionate to the seriousness of his conduct?

An exploration of the facts relied upon by the respondent in reaching the decision to dismiss provides the basis for the test of reasonableness. The facts are as follows:

1. On May 4th 2017, as a result of an argument over who should assist a customer, the complainant shouted an order at his colleague. When his colleague did not comply with the order, the complainant approached him, gesturing aggressively with his fists, and injured him in the eye.

2. The injured employee went to his manager’s office to report the incident. The complainant then entered the office and threatened to kill him.

Peripheral to the events of May 4th, there were other allegations of aggressive and threatening behaviour by the complainant; however, it is clear that he was dismissed as a result of the two facts set out above.

In defence of his behaviour, the complainant said that he was provoked by Mr M and the other general operative who were giggling at him and that he lost his temper. He also suggested that the situation arose due to a lack of supervision on the shop floor. He said that the threat to kill Mr M should not have been taken literally, as it was said in the heat of the moment. He said that the injury inflicted on Mr M was an accident.

I have listened to the evidence of the complainant and I have considered what he said was the cause of him losing his temper. I have also considered the evidence of Mr M and the statements given by the customer and the general operative as part of the investigation that preceded the disciplinary meeting. Even if Mr M and his colleague were giggling at the complainant, this does not excuse his reaction. His explanation that he accidentally poked Mr M in the eye is difficult to believe.   I find that the complainant’s response to being challenged by Mr M was aggressive, uncontrolled, and unacceptable in any workplace.

It is my view that the respondent’s conclusion that the complainant’s behaviour amounted to gross misconduct and a grave breach of discipline was that of a reasonable employer.

Was the Process Fair?

The day after the incident on May 4th 2017, the complainant was suspended with pay pending an investigation. The investigation concluded on June 2nd, with a recommendation that the matter should move to a disciplinary hearing. A disciplinary meeting was held on June 12th and the complainant was dismissed on June 14th. On June 22nd, he confirmed that he wished to appeal against his dismissal and he had a meeting with an external investigator on July 7th.   His dismissal was upheld on July 13th.

At all stages of this process, the complainant was represented by a union official, and with the support of his representative, he challenged the accusations against that were made against him.

On behalf of the complainant, Mr Dorda argued that the use of CCTV footage has tainted the process and resulted in an unfair conclusion that the complainant assaulted his colleague.   The use of CCTV in a disciplinary process is not provided for in any agreement between the company and SIPTU.   For this reason, reliance on CCTV footage as evidence of the complainant’s behaviour is not consistent with the “fair obtaining” principle of the Data Protection Acts, which provide that a data controller (the employer) must inform data subjects (employees) that CCTV footage may be used as evidence in disciplinary investigations.   Having reviewed the case studies from the Office of the Data Protection Commissioner provided by Mr Dorda, it is clear that the use of CCTV in disciplinary proceedings where employees have not been informed that it will be used for this purpose is a breach of Section 2(1) of the Data Protection Acts.

At the investigation meeting on May 15th, the complainant and his union representative were shown a still photo from footage about 40 minutes after the initial incident. After the meeting, the complainant noted on the minutes that he didn’t see the footage of the actual incident “as requested.” With the assistance of an IT expert, the management then located the footage of the incident and in a letter of May 23rd, Mr J invited them to a meeting to look at it:

“Further to our meeting of the 15th of May 2017 and your note on the minutes of the meeting, I am inviting you to attend at (name of the company) on Tuesday, 30th May 2017 at 10.00am to review all the CCT (sic) footage of the incident.”

The complainant and his union representative attended the meeting on May 30th and they were shown the footage of the incident. It is clear that they did not object to the use of the CCTV recording, and in fact, they requested to see the footage. On this basis, I have to conclude that the complainant and the union, whether intentionally or otherwise, collaborated with the company in the breach of the Data Protection Acts.

In the absence of an agreement, the CCTV footage should not have been introduced in the disciplinary process. Taking all the facts into account, and considering the evidence of the complainant himself, there was no requirement to look at the CCTV recording to corroborate any matter. The complainant did not deny that he caused the injury to the complainant, or that he threatened to kill him, albeit that he explained that his behaviour was as a result of being “wound up” and done “in the heat of the moment.”

It is well established that what is required in disciplinary investigations is a fair procedure, which need not be a flawless procedure. The use of the CCTV footage has introduced a flaw, but, in my view, it has not rendered the procedure unfair. At all times during the process, the complainant had appropriate and professional representation, he availed of his right to appeal the outcome and, on this basis, it is my view that the process was fair.

The case of O’Riordan v Great Southern Hotels, UD 1469/2003, was referred to by the respondent where the chairman set out the test for determining that a finding of gross misconduct was not unreasonable:

“The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

I am satisfied that, having a genuine belief that the complainant assaulted his colleague, the respondent conducted a fair investigation and the process that led to the decision to dismiss the complainant was fair and reasonable.

Mr Dorda referred to the High Court appeal of James Reilly against the Governor of the Bank of Ireland [2014] IEHC 241 in which Mr Justice Noonan observed that:

“An assessment of the reasonableness and proportionality of the employer’s response 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.”

There can be no doubt that the impact on the complainant of the termination of his employment is severe. Since he was dismissed in June 2017, he said that he got work for seven weeks with a logistics agency. My impression is that, as a family business with 33 employees, the relationship between management and employees was paternal and tolerant. Until the incident on May 4th 2017, some leeway was given when issues arose in relation to the complainant’s behaviour.   On this occasion, however, the respondent took a more detached approach, and managed the situation based on the facts, which were serious. I have to conclude that, having regard to the impact of his dismissal on him, measured against the impact of his conduct on employees and on his employer, the decision to dismiss the complainant was reasonable and in proportion to the seriousness of his conduct.

I have found that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate and I also find that the process was fair.   On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded and does not succeed.

These complaints are about the fact that the complainant did not receive statutory minimum notice or pay in lieu of notice at the time of his dismissal.

At the hearing, the respondent stated that the complainant was not entitled to statutory notice because he was dismissed due to gross misconduct. In accordance with section 8 of the Minimum Notice and Terms of Employment Act 1973 (as amended),

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

The respondent’s position is that the complaint under section 6 of the Payment of Wages Act cannot succeed because no illegal deduction of wages occurred.

I find that because the complainant was dismissed due to gross misconduct, he is not entitled to notice or pay in lieu of notice.

As I have found that the complainant was not entitled to notice, his complaints under the Payment of Wages Act 1991 and the Minimum Notice and Terms of Employment Act 1973 fail.

Under the heading of these two complaints, the complainant alleged that he was not paid in full for outstanding holidays at the time of his dismissal. The complainant stated that he was entitled to 28 days’ annual leave in 2017, seven of which had been carried over from 2016. At the termination of his employment, he claims that he would have been entitled to 17 days, but he was paid in lieu of eight days.

The respondent’s position is that, having worked for 774 hours in 2017, the complainant was entitled to 8% of these hours as holidays, equivalent to 62 hours or 8.25 days.   He carried 5.5 days from 2016, resulting in an entitlement on his last day at work of 13.75 days. In 2017, he took six days’ holidays, leaving him with 7.75 days’ remaining. A final payslip submitted in evidence shows that he was paid €952.02 which, according to the respondent, is equivalent to nine days’ pay.

From the evidence submitted by the respondent, I find that the complainant received his entitlement to pay for holidays not taken in 2017.

As I have found that the complainant was paid in lieu of holidays not taken up to the termination of his employment, his complaints under the Organisation of Working Time Act 1997 fail.

Dismissal, gross misconduct