Complainant

Respondent

Anonymised Parties

Cleaning Supervisor

Food Manufacturer

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00021730-001

11/09/2018

The Complainant was employed by the Respondent as a cleaning supervisor from 16th July 2012 until his was dismissed on 31st July 2018.

The Complainant was paid €460 gross per week for a 40 hour week.

The Complainant contends that he was unfairly dismissed and is seeking compensation in relation to his complaint.

The Respondent submits that:

·         The Complainant was dismissed following a thorough investigation and disciplinary process, arising from an incident that took place in the workplace on 5th July 2018.

·         An incident occurred between the Complainant and another named employee in the male locker room on 5th July 2018 at around 1.30pm.

·         An initial investigation commenced immediately on 5th July 2018. On foot of the initial investigation, it was decided to suspend two employees, both of whom were identified as being involved in a physical altercation in the locker room.

·         The complete investigation process involved interviews with the suspended employees and three witnesses.

·         The Complainant accepted during his investigation interview that he had pushed another employee on a number of occasions during the incident in the locker room. His account was confirmed by a number of the witnesses interviewed.

·         The Complainant was supplied with interview notes of the investigation in relation to the interviews with the witnesses and the alleged victim.

·         An initial disciplinary hearing took place on 19th July 2018. The Complainant was notified of the hearing in writing, he was made aware of the allegations against him, he was made aware of his right to be accompanied at the hearing and he was advised that the disciplinary process could result in disciplinary action been taken against him up to and including dismissal. He was supplied with a copy of the Respondent’s disciplinary procedure.

·         Following on from this hearing, in which the Complainant accepted fully that a physical altercation occurred with another employee, it was decided to convene a further disciplinary meeting on 25th July 2018.

·         The purpose of the second meeting was to provide the Complainant with an opportunity to put forward any mitigating matters or other relevant information. At this meeting no further information and no mitigation was put forward by the Complainant.

·         The Complainant was then invited to a further disciplinary meeting on 30th July 2018 with the Factory Manager. Again, this was for the purpose of putting forward any further defence or any mitigating factors. The Complainant failed to add anything further at this third disciplinary meeting.

·         As a consequence of these ongoing failures to mitigate his conduct or put forward any contrary evidence, the decision maker (the Factory Manager) decided to dismiss the Complainant from his employment at the meeting on 30th July 2018. The Factory Manager advised the Complainant that he had 3 days in which to lodge an appeal of this decision.

·         As no further contact was made by the Complainant after the meeting , his P45 and final payments were issued to him.

·         It is submitted that the Respondent followed fully fair procedures in relation to the disciplinary process in accordance with the company disciplinary procedure. The Complainant knew at all stages the allegations against him. He was provided with the notes of meetings with the witnesses and with the person he had the altercation with. He was afforded the opportunity to have representation at all stages of the process which involved an investigation meeting and three disciplinary meetings. At no stage during this extended process did he give counter evidence or in any way introduce mitigating factors.

·         For all those reasons it was determined that dismissal was the only appropriate sanction given any lack of remorse or presentation of mitigating factors.

Evidence of the Quality Assurance (QA) Manager

The QA Manager said that a member of staff came to him on the 5th July 2018 to say that there had been an altercation in the male locker room and that the Complainant was alleged to have pushed one of his colleagues a number of times.

The QA Manager interviewed the colleague who had allegedly been pushed. He then informed the Operations Manager what had happened.   The Operations Manager suspended both the Complainant and the alleged victim.

The QA Manger interviewed three employees who had witnessed the altercation. He also conducted an investigation interview with the Complainant on the 13th July 2018. The QA Manager said that at the investigation meeting the Complainant said that his colleague opened his locker and looked into it. The Complainant said that he gave him the benefit of the doubt and did not react. His colleague then walked away and then came back and opened the locker again. The Complainant said that he pushed his colleague away and said “This is my locker”. He said that he pushed him twice. According to the Complainant, his colleague went to open his locker a third time. The Complainant shut the locker door as he colleague was trying to open it and nearly caught his colleague’s fingers.

The QA Manager said that during the course of his interview, the Complainant made a reference to getting aggressive and he indicated that he would act the same way if a similar situation arose in the future.

The QA Manger also conducted disciplinary meetings with the Complainant on the 19th and 25th July 2018.

The QA Manager said that copies of all the investigation interviews, including the Complainant’s were sent to the Complainant on 23rd July 2018 together with the minutes of the disciplinary meeting of 19th July 2018.

Evidence of the Supply Chain Manager

The Supply Chain Manager said that he attended all the investigation and disciplinary meetings solely as a note taker and that he did not contribute to the meetings.

Evidence of the Factory Manager

The Factory Manager confirmed that he was not in the factory on the 5th July 2018 when the altercation between the Complainant and his colleague occurred.

He confirmed that he read all of the notes of the investigation and disciplinary meetings.

He said that he had met the Complainant on 9th July 2018 at the Complainant’s request.   He said that it was an informal meeting. He said that he told the Complainant that he could not get involved in the disciplinary process and that the QA Manager would conduct the investigation.

The Factory Manager wrote to the Complainant on 26th July 2018 to invite him to a disciplinary meeting on 30th July 2018.

At that meeting he informed the Complainant that he would have to let him go. He said that if the Complainant had shown remorse and apologised for his behaviour he would have considered a lesser sanction than dismissal.

The Factory Manager confirmed that he did not mention the word “appeal” nor did he inform the Complainant how to make an appeal at the meeting on the 30th July 2018.   He also confirmed that he did not write to the Complainant after the meeting to confirm his dismissal nor to explain why he was dismissed.

The Complainant submits that:

·         Following an altercation with a colleague on 5th July 2018, he was dismissed on 31st July 2018.

·         He pushed his colleague a number of times because his colleague was leaning over him.   As far as he was concerned, his colleague instigated the incident.

·         Five investigation and disciplinary meetings were held in total, the first being an informal one held on Monday 9th July 2018 with the Factory Manager. The Operations Manager told him on the 5th July 2018 to come in and meet the Factory Manager on the 9th July 2018 at 12pm. At that meeting, the Factory Manager asked the Complainant what happened on 5th July 2018 and the Complainant explained the incident. There were no minutes or notes of this meeting provided to the Complainant. The meeting lasted 5 minutes and the Factory Manager assured him that the matter would be sorted by that Friday (13th July 2018).

·         The Complainant would strongly argue that the investigation commenced on the 9th July 2018 when he met with the Factory Manager.

·         Following the initial meeting with the Factory Manager, the Complainant attended an investigation meeting on 13th July 2018 with the QA Manager followed by disciplinary meetings on 19th and 25th July 2108 – both with the QA Manager.

·         The Complainant was not provided with the identity of those who gave witness statements against him as their names were blacked out on the statements not was he given the opportunity to cross-examine any of them.

·         The Complainant was then invited to a final disciplinary meeting with the Factory Manager on 30th July 2018. At that meeting, the Factory Manager explained to him that he had "think of the bigger picture further down the line" in taking the decision to dismiss, which suggested that other facts were at play in the decision to dismiss Complainant.

·         The outcome of the final investigation meeting was left unclear. The Complainant believes that he may have been verbally dismissed at that meeting, but was then "given 3 days to think about it".

·         The Complainant was unable to pursue an internal appeal as he was not issued with an actual dismissal letter nor was he provided with the reasons for his dismissal.

·         The only letter he received confirming his dismissal was requested by the Complainant in order to apply for Jobseekers Benefit as he was not provided with his P45 until the end of August.

·         The Factory Manager made the final decision to dismiss despite having been part of the initial investigation.

·         There was a clear breach of fair procedures given the dual role of the Factory Manager as investigator and decision maker.

·         The Complainant requested a copy of his employee file under Data Protection but it did not include a copy of the minutes of the disciplinary meetings held on 25th and 30th July 2018 nor of any dismissal letter.

·         The first sight the Complainant had of the minutes of the meetings held on 25th July 2018 and 30th July 2018 was when they were sent to the WRC on 10th August 2018 and forwarded to his representative.

·         The Complainant argues that it was not reasonable to treat the manner as gross misconduct. In relation to the altercation that happened, the Complainant outlines that he has an underlying head injury that causes him to instinctively raise his hands when somebody enters his personal space. While he did not introduce this in the course of the disciplinary procedure, he argues that he was prevented from doing so do to the unfairness of the procedures followed as, by the time he sought further advice on the matter, the time for a further internal appeal had passed without knowing the reason for the dismissal or, indeed, who made the decision to dismiss.

·         In any case, the incident does not constitute gross misconduct and is not of such gravity such as to justify dismissal.

·         The Complainant had an incident with a line manager the previous week in relation to poor treatment of a colleague and he believes that this may have been a contributory factor in the decision to dismiss.

·         In relation to mitigation of loss, the Complainant has been on a combination of Jobseekers Benefit and casual work since his dismissal. The Complainant is not tech savy and this impacts on his ability to apply for work.

Unfair Dismissal

 Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

 (4) 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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The Complainant was dismissed following a physical altercation with another employee of the Respondent. The Complainant contends that he was denied the principles of fair procedures and natural justice. The Complainant also stated that the sanction was excessive and disproportionate in light of what had occurred.

Procedural Issues

I find that there was a number of procedural irregularities in the investigation and disciplinary processes carried out by the Respondent. The Complainant outlined a number of procedural issues that he contended rendered the process unfair. I am of the view that the most serious of these procedural issues was the involvement of the Quality Assurance Manager in both the investigation and the disciplinary stages of the process and the involvement of the Factory Manager in both the investigation and disciplinary stages .

In order to safeguard the fairness of the disciplinary procedures, the fact-finding disciplinary meetings should have been carried out by a person unconnected with the information-gathering investigation meetings. This was not the case as the Quality Assurance Manager carried out all of the investigation meetings and two of the disciplinary meetings.

In relation to the role of the Factory Manager in the process, I note that there is a conflict between the evidence of the Complainant and the evidence of the Factory Manager about what occurred at the meeting on 9th July 2018.  

I note the Complainant’s evidence that he was asked to go to the meeting by the Operations Manager and at the meeting that the Factory Manager asked him what had happened on the 5th July 2018. I also note that the Complainant was left with the impression that everything would be sorted by Friday 13th July 2018.

I note   that the Factory Manager in evidence says that the Complainant requested the meeting of the 9th July 2018 and that he informed the Complainant that he could not get involved in the disciplinary process.

On the balance of probabilities, I prefer the evidence of the Complainant and I find that the Factory Manager conducted an initial unminuted investigation meeting with the Complainant on the 9th July 2018. I find that it was also the Factory Manager who made the decision to dismiss the Complainant.

The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000) suggests that best practice requires that disciplinary procedures are a stepped process in which the process is escalated through the management ranks.   It would not be in accordance with best practice, as promoted by the Code of Practice, for a Factory Manager to be involved at both the initial investigation stage and the terminal stage of a disciplinary process.

I find that the Complainant only received copies of the statements taken during the course of the investigation stage prior to the disciplinary meeting on the 25th July 2018. He was not supplied with the statements prior to the initial disciplinary meeting on the 19th July 2018.

In the Respondent’s minutes of the meeting of 30th July 2018 where the Complainant was informed that he was being dismissed, the Factory Manager, who was the decision maker, is recorded as saying “you will have three days from today to reply back to us if you have any additional information that may help you. If we do not hear from you with the 3 days we will send you notice in the post”

I find that the Complainant was not informed of his right to appeal his dismissal.

I find that the Factory Manager did not explain to the Complainant that he had a right to appeal the decision to dismiss him. I find that the Respondent did not write to the Complainant confirming the decision to dismiss him and explaining the mechanism whereby he could appeal the decision

The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000) suggests that in order for a disciplinary procedure to adhere to the principles of natural justice and fairness, an internal appeal mechanism must be made available.

The entire process must not only be fair but must also be seen to be fair and in this case, I accept the Complainant’s contention that the disciplinary process which led to his dismissal and the absence of an appeals process were procedurally unfair.

Contribution to Dismissal

The minutes of the disciplinary meeting of 25th July 2018, record that the Complainant conceded that he “got aggressive” because his colleague was at his locker and that he pushed him. The Complainant said that he would do the same thing in the same situation to any other colleague including a member of management.

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

 In all of the circumstances of this complaint, I find that that the physical altercation that occurred on the 5th July 2018 was “very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer“. Accordingly, I find that the actions of the Complainant contributed significantly to his dismissal. 

Band of Reasonable Responses

In relation to the Complainant’s dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

 “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

Having considered the matter, I find that the decision to dismiss the Complainant was within the range of reasonable responses of a reasonable employer. The Respondent sought witness statements and established through its investigative process that what had occurred between the two colleagues amounted to gross misconduct. The Complainant also admitted to what had happened, alluded to the fact that he had acted aggressively and said that he would react in the same manner if similar incident arose in the future.

Mitigation of Loss

The Complainant stated that he was in receipt of Jobseekers Benefit and had only engaged in casual work since his dismissal.

After the hearing, the Complainant submitted documentation in relation to his efforts to mitigate his loss which showed that he had unsuccessfully applied for five cleaning and general operative positions since the termination of his employment with the Respondent and that he had registered his CV with two jobs websites.

In considering this issue, I refer to the EAT Decision of Coad v Eurobase (UD1138/2013) in relation to the Complainant’s efforts to mitigate his loss. In that case the EAT found that the Complainant’s efforts had not met the standard as set out in the case of Sheehan v Continental Administration Co. Ltd (UD858/1999) which stated:

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…..the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

I find that the Complainant did not make sufficient efforts to mitigate his loss.

Conclusion

In conclusion, and having regard to all of the circumstances of the complaint, I find that the dismissal of the Complainant was substantively fair but procedurally unfair. Having found that the Complainant’s behaviour was such that the Respondent acted reasonably in dismissing him and that the Complainant did not make sufficient efforts to mitigate his losses, I find that awarding a significant level of compensation is not appropriate in this case.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I find that the dismissal of the Complainant was substantively fair but procedurally unfair and I award the Complainant €2,500 in compensation.

Substantially fair, procedurally unfair