ADJ-00002020

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00002020

Parties:

	Complainant	Respondent
Anonymised Parties	A Painter	A Manufacturing Company

Representatives

Deirdre Canty SIPTU

Arthur Cox Solicitors

Complaint(s):

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-00002714-001	19/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00002714-002	19/02/2016

Date of Adjudication Hearing: 02/02/2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainat was dismissed for gross misconduct and he alleges the dismissal was unfair. The Complainant submitted a claim for unfair dismissal and the Hearing was held on February 2nd 2017. The parties requested and agreed to a stay on the decision being issued subject to local discussions. These discussions have now concluded and the Complainants Representative has requested that the decision be issued

Summary of Complainant’s Case:

The C

The Complainant was employed from October 1999 to the date of his dismissal on May 1st 2015 as a Painter.

The Complainant had a clean record for those years of service and had a good working relationship with his colleagues.

The Complainant had suffered from an addiction and while he had relapsed on a number of occasions he has been successful in his treatment for the last year.

An altercation took place at the Complainants work place in March 2015 between the Complainant and a work colleague. The Complainant had been away for the weekend and when commenting on his weekend to colleagues a work colleague took offence to some remarks the Complainant made and a row broke out between the two men. Later that day another row broke out between the two men which resulted in the Complainant being knocked to the ground while trying to defend himself. The Complainant admitted to his Chargehand that he was under the influence of a substance at the time. The Complainant was driven home by his Supervisor after the incident.

The Complainant accepts that a fracas broke out but he believes a full and fair investigation did not take place into the incidents. Diagrams used and mentioned in the meetings were not included in the report and the investigation team were not consistent. Two witnesses were interviewed together at the same meeting and were present when the other gave evidence. None of the witness notes were given to the Complainant until after the investigation concluded and he was not given the opportunity to contest the evidence. The Report does say the Complainant co-operated fully with the investigation and that he was on the ground with the other employee standing over him screaming and shouting at each other.

Our position is that the dismissal was disproportionate and that a lesser penalty was more appropriate. The Complainants Representative made several legal arguments and quoted precedents to support their position.

Summary of Respondent’s Case:

The Complainant was dismissed for gross misconduct for fighting on the premises.

The Respondent conducted a thorough and fair investigation procedure.

The Respondent was entitled to dismiss without notice in these circumstances.

The Complainant was involved in three physical altercations/fights on March 9th 2015.

The Complainant admitted to being under the influence of a substance on the day in question and his speech was slurred and he could not stand.

The Complainant requested help with addiction counseling and this was arranged by the Respondent.

The Respondent has a Health and Safety obligation to other staff in these circumstances.

The Complainant was then invited to a Disciplinary Hearing and he had professional Representation of his choice. The Hearing heard all the relevant evidence and concluded that the Complainant had completed an act of gross misconduct.

The Complainant was given the right of appeal and an appeal Hearing was held on August 28th 2015. The Hearing confirmed the decision to dismiss the Complainant on the grounds of gross misconduct.

The Respondents Representative made several legal arguments and quoted precedents to support their position.

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.

Section 6 of the Unfair Dismissals Act states the following:

“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.

In arriving at this decision I have taken two factors into account; firstly did the Respondent have’ substantial grounds to justify the dismissal” the Complainant. The answer to this question is clear. The Complainant arrived at work under the influence of a substance and was involved in three physical altercations with another employee, some of which he initiated. This merits a gross misconduct under the Respondents disciplinary code and it is not for me to second guess the Respondents decision in this regard. Secondly did the Respondent give fair procedures and direction to the Complainant, especially in his personal circumstances where the onus on the Respondent to set out clear and complete procedures, when it dealt with the matter.

My conclusion is that the Respondent had substantial grounds for dismissing the Complainant for fighting on the company premises but they failed in their duty to properly inform the Complainant of his rights to appeal and the subsequent delay in the appeal process and, on this technicality, I deem the dismissal to be unfair. I award the Complainant 7,000 Euros for some breaches of good practice in the conducting of the disciplinary process (CA-00002714-001) . The two breaches in particular are, that the Company Handbook did not contain any mention of an internal appeal and no mention was made to the Complainant of his right to an external appeal of the company decision. It is a matter for the Company whether or not they wish to address these procedural issues in their Company Handbook on a more general basis.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. As a result of the decision to award an unfair dismissal decision the claim under the Minimum Notice and Terms of Employment Act 1973 (CA-00002714-002) must again succeed on the technicality of the unfair dismissal and I award the Complainant 8 weeks pay in lieu of notice in line with Section 4 of that Act based on his service.

Dated: 30 August 2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Unfair Dismissal