Complainant

Respondent

Anonymised Parties

  A Painter

An Employer

Representatives

SIPTU

Arthur Cox Solicitors

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-00000191-001

12/10/2015

The respondent employed the complainant as a painter from November 2005 until his dismissal on the 1st of May 2015. He worked 37.5 hours per week and was paid in the region of €48,000 per annum. The parties made written and oral submission to the hearing.

The respondent submits that the complainant was dismissed for gross misconduct and the termination of his employment following a thorough and fair process which observed his right to natural justice. He repeatedly breached the respondent’s Disciplinary Process and displayed a “clear lack of candour in his engagement with [the respondent] in relation to his conduct.”                         Specifically, a report was received by HR on the 10th of March 2015 concerning three incidents (including physical altercations/fights) which had occurred on the previous day between the complainant and a colleague. The accounts provided to the investigation officer indicated that there were three physical altercations/fights between the complainant and a colleague at 3pm, 6:50pm and 7pm on the 9th of March 2015. The complainant was on sick leave arising from an injury to his finger (fracture) at this stage and was therefore one of the last people to be interviewed in the investigation process. During his interview on the 24th of March he denied fighting with his colleague on the 9th inst., he denied being involved in any physical altercation nor could he confirm that any witnesses were present for the alleged altercations as he had been at his workplace for the entire time. On being questioned in relation to the injury to his finger he denied that it had occurred due to any altercation with his colleague and described it as an accident at work. The incident report refers to the statement of the chargehand and the admissions of the implicated colleague as providing best evidence in the absence of CCTV. The author concluded that the relevant information was being withheld by the 6 witnesses who were interviewed but noted that it was confirmed by them that there was shouting and that “a number of scuffles” had taken place which resulted in the implicated colleague ending up on the floor on two occasions. It refers to the fact that the complainant admits to an argument only at 3pm in the tea room and that he denies that anything else occurred between himself and his colleague on the day.                                                                                                                                           The complainant was invited to attend at a disciplinary hearing based on the allegation that he was involved in three altercations/incidents of fighting on the 9th of March 2015 with his colleague and that he had falsely represented to the respondent that he had injured his finger in an accident at work. He was provided with all relevant documentation, advised of the gravity of the allegations, advised that if proven the behaviour would constitute gross misconduct and suspended from work from the 9th of April 2015 pending the outcome of the process.                                                               The disciplinary officer acted in the same capacity in relation to the complainant’s colleague arising from the same report. He met the complainant on the 21st of April 2015 and had met with his colleague earlier that day. During the earlier meeting the colleague alleged that the complainant had punched him in the canteen at 3pm on the 9th of March 2015. The disciplinary officer advised the complainant of that allegation prior to requesting his version of events. The complainant was initially reluctant to respond but eventually conceded that there had been a “physical argument between himself and [his colleague], during which they had pushed each other, and had ended up on the floor, with colleagues intervening to physically separate them.” He was asked whether or not this had caused the fracture to his finger. He said that it hadn’t. The complainant’s explanations were deemed unsatisfactory and it was determined that his behaviour amounted to gross misconduct in breach of the Disciplinary Policy. He was dismissed by letter of 1st of May 2015.                                                                                                      

An internal appeal of the dismissal was lodged on the basis that the finding in relation to his injury at work was flawed and that the sanction was excessive in circumstances where there had been provocation. The hearing was provided with a medical report in relation to his fractured finger. The appeals officer dismissed the appeal following consideration of all the matters raised.                             The complainant was so advised by letter of 1st of July 2015.                                                                          

It is submitted that the nature of the respondent’s business requires the strictest application of best practice rules relating to health and safety and does not in any circumstance allow for the behaviour engaged in by the complainant herein. The respondent operates a zero-tolerance policy in relation to fighting and has consistently applied this policy over the years. Provocation is not an issue as there were three separate breaches of policy. The complainant was less than forthcoming in the process which has led to an undermining of trust and confidence in the relationship. It is reasonable for the respondent to conclude that the injury to his finger arose from fighting and led to him being off work on sick leave. The report on the matter from the local general hospital is inconclusive in relation to how the injury was sustained.

The respondent submits that his dismissal was unfair on both substantive and procedural grounds. The complainant was invited to an investigation on the 24th of March 2015. He was not informed that this was an investigation dealing with allegations of misconduct against him on the 9th of March 2015. In response to the questions raised concerning incidents on the 9th of March 2015 he stated that there had been a bit of an argument at 3pm. He denied any further incidents on that date. He had been on sick leave arising from an injury to his finger at work and was asked if it had anything to do with the incident. He answered in the negative. He was not at this stage provided with any substantiation of specific allegations against him. Thereafter he received an invitation to a disciplinary hearing (letter of 9th of April 2015) from the investigation officer informing him that an investigation report had issued and that as a result he was now the subject of two allegations: - “you were involved in three altercations/incidents of fighting on the 9th of March ……” and “you falsely represented to the company that you injured your finger at work in an accident at work.” The disciplinary officer was named in the letter, he was advised of his right to be represented and that if gross misconduct were proven it could lead to his summary dismissal. He was suspended with basic pay with immediate effect. The incident report contained in the letter references a few interviews with the chargehand but provides only one statement taken from him on the 12th of March 2015 and signed on the 18th inst. He notes in his statement that the colleague who was implicated in these allegations of fighting had drink taken at 6:50pm at which point he instructed him to go home. He took him home after the 7pm incident which he describes in his statement. It is submitted that the balance of the interviews (6 in total) conducted during the investigation would suggest that the complainant was the subject of provocation in that his colleague had set out to insult and harass him. Additionally, they suggest that it was the colleague who had approached the complainant at 3pm and 6:50pm. The complainant was informed by the disciplinary officer that the implicated colleague had made a statement earlier on the same day (21st of April 2015) to the effect that he had been punched by the complainant in the canteen at 3pm on the 9th of March 2015. The complainant outlined that he was being goaded by his colleague and that he had told him to shut up on 4/5 occasions to no avail. He threatened him thereafter but not physically. The argument then got physical but no punches were thrown and it was over quickly. At 6:50pm they shouted at each other and later at 7pm in the locker room “the two of them had a go at each other, pushing each other and ended up on the floor.” On being questioned once again in relation to his injured finger the complainant once again reiterated his denial. The point was made that the failure to deal with the fact that his colleague was under the influence of alcohol since his arrival at work on the day was a contributing factor and should be considered. Furthermore, the complainant had been subjected to harassment based upon the fact that he is from a different geographic area than most of his colleagues and he would normally just leave the canteen in these circumstances. He knew the difference between banter and when he was being got at and that in the circumstance he stated, “it had just got to him on the day.” He was dismissed by letter of the 1st of May 2015 and subsequently appealed the decision.

The appeal hearing of the 4th of June 2015 heard that the dismissal was unreasonable and disproportionate in that the “other party was intoxicated, aggressive and provocative.” That the provocation turned to physical entanglement and not a fight as alleged. That the context guaranteed confrontation and that the chargehands on the day had to be aware that the aggressor was intoxicated and did nothing about it. That in the absence of any evidence to the contrary the allegation that the complainant had injured his finger in an altercation with his colleague had to be regarded as mere speculation. The appeal was unsuccessful.

It is submitted that on the substantive ground the respondent has failed to consider or give weight to the fact that the aggressor in this case was by his own admission intoxicated and on the balance of the evidence was provocative towards the complainant. The evidence is conflicting in respect of the level of confrontation between the parties. The chargehand who eventually instructed the aggressor to go home did not report the matter to management and only gave an account of these events after the fact. The second ground relied upon to dismiss (falsely representing to the company that you injured your finger in an accident at work) can only be regarded as speculative in the absence of any discernible evidence. This allegation was not put to the complainant in advance of or in his invitation to the investigation meeting.

It is submitted that on the procedural ground the dismissal is unfair in that investigation officer failed to inform the complainant that he was the subject of the investigation or provide the specifics of the same or evidence thereof. He was not informed that he was entitled to bring his Union representative. The disciplinary process was initiated by the investigation officer who had recommended that the disciplinary process be inaugurated. A new allegation was put to the complainant at the disciplinary hearing for the first time in the process.                                Accordingly, both aspects of the process were undermined. The appeal failed to consider the clear presence of provocation in relation to the first allegation and the lack of evidence in respect of the second. The complainant had no previous warnings pertaining to matters of this nature and had 9 years of service with the respondent. A lesser sanction was available and called for in circumstances where the respondent felt that it was necessary.

In coming to a decision in this matter I have considered the submissions made (facts, arguments and applicable law) together with witness evidence adduced at hearing.

The conclusion reached in relation to substantive issue in this case is fair and reasonable. The nature of the allegations was of such serious import as to go to the heart of the employment relationship and the conclusion reached based on the balance of probability and the complainant’s evidence in that respect was also reasonable. I am satisfied that the respondent gave due consideration to the issue of provocation and that it does not treat these matters lightly.

I note that the incidents of the 9th of March 2015 were first investigated by HR on the 12th inst. having received a report of these matters from the foreman on the 10th inst. The chargehand had made a statement on the 12th inst. in respect of two incidents he witnessed in which he reported that the complainant and a named colleague engaged in fighting at 6:50pm and 7pm on the evening of the 9th of March. The minutes of the 2nd investigation meeting with the complainant’s implicated colleague which took place on the 13th inst. indicate that he had stated for the first time that he was assaulted during the 3pm incident and that he was assaulted again in the locker room at 7pm. He refused to give further detail in relation to these accusations. Subsequently, during his disciplinary hearing which took place prior to the complainant’s disciplinary hearing he stated that he had been punched by the complainant at 3pm on the 9th of March. The disciplinary officer brought this matter to the complainant’s attention at his hearing on the afternoon of the same day. This was the correct thing to do in my opinion short of submitting the allegation to further investigation.

The complainant has argued that the process has been sullied to the extent that it has rendered the dismissal fatally flawed (see above). He was not given sight of the chargehands statement in advance of his investigation meeting, the statement was not referred to during the meeting, and he was made aware that his implicated colleague had said he had been punched on the day of his disciplinary hearing during his own disciplinary hearing. Furthermore, he was not made aware in the invitation to the investigation meeting that he was himself to be the subject of that investigation, nor was he notified of his right to have a trade union official accompany him.

Having considered this element of the complainant’s submission and having reviewed the documentation submitted at some length I am satisfied that the investigation process was fair and that its terms of reference was to investigate a report of an altercation on the 9th of March 2015 in the complainant’s department. The invitation refers to the complainant explaining his case thereby confirming the fact that he is implicated. The chargehands statement which grounded the investigation was not provided in advance but was referred to during the investigation. The fact that it was not provided is a matter of concern but does not render the process fatally flawed in circumstances where the investigation report and all related documentation were provided in advance of the disciplinary hearing.

Accordingly, I find that the herein dismissal was fair.

The complaint is not well founded.