Complainant

Respondent

Anonymised Parties

A worker

A Company

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-00011697-001

01/06/2017

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

CA-00011697-002

01/06/2017

The complainant categorically denies punching or striking anyone in the workplace. He states that in or around Christmas 2014 that is when things start to go downhill for him. He would go to work every day but generally he was feeling very down. He was taking everything personally. He was doing his best to get the best out of all of the Machines and to increase his productivity level but he felt that no matter what he did it wasn't good enough. He knew that his bosses were not happy. He started to have panic attacks and his anxiety levels increased. In 2014 / 2015 he took on an additional role. He felt it was his responsibility to manage everything but didn't feel at that time he was capable of doing so. His line manager noticed his mood and did ask him on one occasion if he was feeling ok. He told him that he was having a few issues and that work was getting him down. His line manager, he accepts, did attempt to get him off the machine that he was working on at that time. He knew there was something wrong with him but he did not know exactly what it was. He accepts that despite these issues his attendance record was excellent for that period of time.

On the day in question, 21 April, 2016 the complainant stated that he was extremely frustrated because there was a blockage further down the line and it was not caused by him. The blockage delayed him for about 20 minutes which had a knock on effect on his work progress. Due to the frustration he accepts that an altercation did occur between himself and Y. The complainant in cross examination admits that he pushed Y away and that he may have caught him on the side of the face. He also admits that he said to a colleague “you saw nothing” he did so because he knew he was going to get into trouble he also knows now that he shouldn't have said it al all.

At the time of the investigation and disciplinary hearing, the complainant accepts that he had not put the respondent on notice of his mental health issues. It wasn't until after he was dismissed that the respondent was put on notice.

The complainant had concerns about the fairness of the entire disciplinary and investigation process. He stated that it would seem from the investigation report that the investigation officer made a decision as to his “ guilt or innocence” . It is stated in his investigation report that the Complainant’s “conduct was capable of amounting to gross misconduct” and recommended that the Respondent should invoke its disciplinary procedures in respect of the Complainant’s actions. It wasn’t open to the investigation officer to decide whether or not the conduct amounted to gross misconduct of not and in doing so he over stepped his jurisdiction rending the process from that point onwards flawed.

The respondent suspended the complainant, it says the suspension was necessary do to the nature of the allegation and to prevent any further potential occurrence. However, in circumstances where the complainant was not suspended for four weeks post incident the respondent estopped from making that argument.

It is submitted that the Respondent’s decision to dismiss the Complainant on 10th June 2016 was wholly justified and that there were and are substantial grounds justifying that decision.

Following the incident of 21st April 2016, the H&S Manager of the Respondent, V, was appointed to carry out a full investigation into the complaint of assault made by Y against the Complainant which was alleged to have taken place at the Asahi Machine on the Respondent’s premises. A formal complaint was made by Y on the evening of the 21st April 2016, to his Supervisor ‘W’, alleging that the Complainant had punched him on the right side of his face, following a verbal altercation between himself and the Complainant between 7pm and 7.10pm.

Upon being reported to the Respondent’s management, the matter was fully investigated by V within the Respondent, who found, inter alia, that the conduct of the Complainant on 21st April 2016 was capable of constituting gross misconduct within the meaning of the Respondent’s disciplinary policy and under Section 41 of the Respondent’s Works Agreement with SIPTU Printing Trades Branch dated November 1999, as amended in April 2006. A recommendation was made that the Respondent’s disciplinary procedures ought to be invoked in respect of the Complainant’s conduct. Following the incident, W, in the presence of Z, Quality Control, took statements from each of the witnesses present, being the Complainant, Y and K . V wrote to the Complainant and Y on 26th April 2016, outlining the scope of his investigation. V interviewed all persons in attendance at the incident (the Complainant, Y and K).

In his investigation report dated 18th May 2016, V concluded, inter alia, as follows:

“I believe that [the Complainant] was the main aggressor in the altercation with Y. He, when admittedly annoyed and frustrated, initially threw the offending boxes on the table beside Y and sought clarification from him as to whether or not Y was looking for them. Clearly, Y was not looking for them, as they would be considered WIP waste. [The Complainant’s] comment therefore to me was no doubt meant as a sarcastic criticism of Y and [the Complainant] would have known this. [The Complainant] then proceeded to follow Y onto the platform or the platform step of the Asahi machine and by his own admission square up to Y. There was an exchange of words where both men could be accused of egging each other on so to speak but it is clear that [the Complainant], though his actions in following Y, squaring up to him and ultimately physically striking him, was the main offender here. I do not believe the exchange of words between the two was justification for [the Complainant] to strike Y and the fact that Y did not engage in the squaring up event before the physical contact was made indicates to me that he cannot be blamed for the actions of [the Complainant].

I do not believe [the Complainant’s] behaviour in following Y and engaging in a verbally abusive conversation was appropriate or reasonable behaviour in the workplace.

The act of squaring up to another employee is in my view a physical threat which is unacceptable in the workplace of the respondent.

Making physical contact with another employee, whether that be a punch, shove of push is unacceptable in the workplace of the respondent. [The Complainant] says he made contact with Y to dis-engage from him but I find that version of events hard to accept. [The Complainant] has admitted that he squared up to Y and that Y was not aggressive to him when doing so. This is confirmed by the only independent witness, K. It seems logical therefore to me that if [the Complainant] wished to dis-engage all he had to do was step back from Y and return to his workstation. To me the punch / push / shove that followed was a further act of intimidation on the part of [the Complainant] towards Y which cannot be explained or excused as an attempt to disengage.

Saying to another employee, after they have witnessed a serious incident at work, that they have, “seen nothing” is a serious attempt to interfere in a company investigation and also can only be seen as a threat to the employee it is said to. The Complainant’s behaviour in saying that to K is in my view unacceptable behaviour in the workplace of the respondent.

The Complainant confirmed at interview and in his statement that Y initially told him to bring any complaints he had about the blockage to the tunnel to his supervisor W. I don’t accept that even if this was said in a sarcastic way that the Complainant reacted appropriately or was justified in following Y at the Asahi machine. I believe that the presentation of the boxes that had blocked the machine by the Complainant to Y with the question of whether or not Y was looking for them was an act of provocation which started the verbal altercation. I therefore believe that regardless of what was said during the verbal exchange it was ultimately started by the Complainant. He therefore should take most, if not all, of the responsibility for it. I therefore believe that no action should be taken against Y with respect to the verbal altercation and the incident itself.

While the Complainant has expressed his regrets about the incident to me and while I believe he is sorry for what has happened and what he says in relation to attempting to apologies to Y it does not change the fact that what occurred on the night of the 21st April 2016 was a very serious matter.

On foot of his findings, V determined that the Complainant’s conduct was capable of amounting to gross misconduct and recommended that the Respondent invoke its disciplinary procedures in respect of the Complainant’s actions.”

Q, Operations Manager of the Respondent, was appointed to conduct a disciplinary process in accordance with the Respondent’s agreed procedures. A disciplinary hearing was held on 30th May 2016, at which the following personnel were present:

             the Complainant

(ii)        SIPTU Representative

(iii)       SIPTU Shop Steward

(iv)       V (HSE Manager, and Investigator)

(v)        W (Shift Superviser)

7.     Immediately following the disciplinary hearing and arising from the evidence given therein the following individuals were interviewed:

(i)         A

(ii)        B

(iii)       C

(iv)       K

(v)        Y

The Complainant was furnished with a copy of the minutes of the disciplinary hearing and a copy of the interview notes relating to the five individuals above.

In his decision, Q upheld the findings of V in his investigation report dated 18th May 2016. Q also made the following additional observations:

“I believe the appropriate action that you should have taken when you exit the underground waste tunnel was to walk away and report the matter to W if you felt particularly aggrieved by it. It was not appropriate for you to confront Y on it and to continue to confront him on it once he had directed you to W.

I believe Y was telling the truth when he said to V that all he wanted to get on with his job but was followed and abused by you. This is confirmed by K in his account of what happened and you in your own statement say that you followed Y up to the Asahi machine. I therefore believe that you were the main aggressor in the argument and the main reason it continued as it did. I also do not believe you when you say that you did not lean your heads towards Y. I accept, as more reliable, the evidence provided in that regard by K who confirms that you did and that Y refrained from reacting to this. This was threatening and abusive behaviour on your part, which in my view was unacceptable. An employee in my view is entitled to be left alone at his machine to carry out his work without distraction or abuse. This is especially so and necessary where heavy machinery is involved.

Regardless of who started the verbal altercation K in his statement maintains that the first sarcastic comments were made by you when you presented the boards to Y and given you have confirmed to V that you were angry at the time I am inclined to believe him) an act of physical violence is completely unacceptable and the only one who resorted to that was you. All employees have the right to work in a safe environment and employers must do their best to ensure that right. This employer’s duty includes, in my view, protecting employees from their fellow workers where that co-worker is acting in a threatening and abusive manner.

I have considered the version of the events surrounding the punch / shove that you have put to me at the disciplinary hearing. In essence you say that you tried to push Y away to disengage from a verbal altercation and accidentally connected with the right side of his face with your open hand. In your initial statement you said Y, “turned away so I reached out and shoved him on the right side of his face”.   Y himself said in his statement, that “as I turned to walk away [the Complainant] punched me in the right side of my face. [The Complainant] was standing side-on waiting on my reaction”.   It is clear to me from both your statements and the accepted point of contact, that Y was walking away from you at the time of impact. For your right hand to strike the right side of his face in circumstances where he was facing you, it would require you to reach across his chest with your right hand. I believe Y had turned away from you and was therefore disengaging from the verbal altercation at the time. I do not accept that your punch or shove was an attempt to disengage from Y as he had already done so. To me it was, at the very least, a further act of provocation or intimidation on your part and entirely unacceptable. The fact that you admittedly positioned yourself thereafter for a retaliatory response from Y further confirms to me that you expected it to happen and maybe even intended for it to happen. That is not the reaction I would have expected from someone who had accidentally shoved a work colleague regardless of what verbal altercation had gone before.

I do not accept your assertion that Y influenced K before K made his statement. I am satisfied that K is speaking honestly about what he saw. He has been interviewed more than once on it as well as providing a statement. To allege that Y has interfered with the only independent witness to the incident is a serious allegation in itself. That allegation, which I believe is unfounded, taken against the background where it is accepted that you yourself tried to influence K with respect to his statement could be seen as misconduct in itself.

In determining the appropriate sanction to be imposed in the circumstances, Q stated as follows:

In coming to a view on the appropriate sanction I have taken into account your 15 years of service with the respondent. I have considered what disciplinary sanction is appropriate and in particular, as dismissal is a last resort, I have contemplated whether a sanctioned less than dismissal could be imposed. Unfortunately, your actions on 21 April last are, in my view, too serious. I have with regret therefore concluded that dismissal is not a disproportional sanction and that in fact it is the most appropriate sanction in this case”

The Complainant was dismissed with immediate effect on 10th June 2016.

In accordance with the Respondent’s procedures, the Complainant was afforded a right of appeal. At the Complainant’s request, the progress of the said appeal was postponed on stated medical grounds. The Complainant’s grounds of appeal were set out in a letter dated 12th May 2017. The appeal was conducted by D, General Manager of the Respondent, and an appeal hearing was conducted on 26th May 2017 at which the Complainant and his SIPTU representatives were in attendance.

In his decision dated 21st June 2017, stated as follows:

“I am satisfied from the information before me that the procedures adopted by the company were fair and that there was a competent assessment of the available evidence”

He went on to state that:

“Overall I am satisfied that from the evidence I have seen there was a significant physical contact made by you to the right side of Y’s face which was something more than an accidental or dismissive push. The point of that contact (on the right side of Y’s face), indicates strongly to me that Y was walking away or at least attempting to and trying to disengage from you, at the time. I do not believe that you were attempting to get away from him.”

Regarding the medical evidence of depression presented by the Complainant at the appeal stage, D stated as follows:

“It has been put to me that I should take into consideration your health issues at the time of the incident in April 2016. Your problems in that regard we’re not brought to the attention of Q despite him asking you at the disciplinary hearing if you wanted to advise him of anything or if there were any mitigating factors you wanted him to be aware of. As you know the disciplinary hearing took place on 30 May 2016, over five weeks after the incident on 21 April 2016. At no time during that period and in particular during V’s investigation, was the issue of your health brought to V’s or Q’s attention. Your SIPTU representative stated at the appeal hearing that depressed people normally do not divulge such information. Unfortunately, I have to question that opinion in your case against a background where you maintain that before the incident on 21 April 2016 you told W that you were taking medication. I have spoken to W and while he does has a recollection of a discussion with you on personal issues outside work he does not recall you saying to him that it would potentially impact on your ability to work or deal with work issues. The fact that you now maintain that you had told W you were taking medication, to me undermines the argument that you were too embarrassed or afraid to mention it to V or Q. Simply put, if you understand the company already knew about your mental health difficulties and that you were taking medication for it, then there shouldn’t have been any real difficulty in reminding the company of that fact during the investigation and disciplinary hearing.”

It is respectfully submitted that the procedures adopted by the Respondent and the ultimate decision to dismiss the Complainant were entirely fair, reasonable and proportionate having regard to the seriousness of the Complainant’s conduct. It simply cannot be contended that the Respondent’s decision was outside the range of reasonable responses having regard the Complainant’s conduct (including his admitted conduct). In the premises, the respondent submits that the Complainant’s claim should be dismissed

The Respondent submits that it is not the role of the Adjudication Officer to substitute his or her view of the Complainant’s conduct for that of the employer but rather to establish whether or not the decision to dismiss within the “band of reasonable responses” available to an employer finding itself in the position of the Respondent.

The “band of reasonable responses” test was developed first by the English Courts in response to a tendency by Industrial Tribunals (now referred to as Employment Tribunals and broadly equivalent to the Adjudication Service) to deal with cases on the basis that there was only one objectively fair and reasonable decision that could have been reached and that, if the decision taken by the employer did not agree with the decision that would have been taken by the Tribunal applying the "reasonable employer test", there was an unfair dismissal. In those circumstances the Industrial Tribunal tended to substitute their view for that of the employer.

The flaws in this approach were confirmed by the English Court of Appeal in Foley v Post Office [2000] ICR 1283. As stated by Mummery L.J. (at p. 1295):

“This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer's decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response."

This principle was elaborated upon by the same Judge in the decision of the English Court of Appeal in Anglian Home Improvements Limited v Kelly [2005] ICR 242:

“The first criticism is that the employment tribunal did not correctly direct itself in law to the appropriate range of reasonable responses test. The test has been well established since the early days of unfair dismissal claims. It is still impossible to improve on the passage from the judgement of Lord Denning MR in British Leyland UK Ltd v Swift [1981] IRLR 91, 93 para 11 cited by Mr. Laddie. The test laid down there was:

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him."

Years later, the same test was confirmed by the Irish High Court in Foley v Post Office [2000] ICR 1283. Foley v Post Office was cited with approval by McGovern J. of the High Court in the context of a wrongful dismissal claim in Doyle v Asilo Commercial Limited [2008] IEHC 445:

“It is not the function of the courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss”. As Mummery LJ stated in Foley v The Post Office [2000] ICR 1283 at page 1295:

“The employer, not the Tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response."

As appears from the passage cited with approval by McGovern J, the “reasonable responses” approach extends to the investigation carried out.

The decision of the English Court of Appeal in Foley, which has been explicitly approved by the Irish High Court, is to the effect that this approach is equally flawed. Rather, the correct approach is to consider whether the investigation carried out was reasonable in all of the circumstances. Further, the question of reasonableness in the context of process is not to be regarded as a separate question.

This approach is explained in the decision of Browne-Wilkinson J. (sitting as a member of the English Employment Appeals Tribunal) in Iceland Frozen Foods v Jones [1983] 1 ICR 17:

“Reverting now to the facts of this case, it is suggested that notwithstanding the misdirection, we can uphold the decision of the industrial tribunal on the ground that on any footing it was manifestly unreasonable for the employers to dismiss in the circumstances of this case. The industrial tribunal obviously regarded the employee's faults as minor ones. We cannot accede to the view that notwithstanding the misdirection we can substitute our own decision in this case. Take, for example, the failure to lock the office and to set the alarm. The industrial tribunal took the view that the offence was comparatively trivial; it does not necessarily follow that all reasonable employers would share their view on the matter. It may well be that the misdirection on this point is fundamental to the decision of the case. We do not know enough of the circumstances of the employer's business to decide whether the importance which they obviously attached to the breach of security was such that a reasonable employer might take the view that the risk which security was too great to allow the risk to continue. We express no view to the point one way or the other. We simply cannot decide the matter ourselves on the material we have before us.

As to the alternative ground relied on by the industrial tribunal, namely, procedural unfairness, as we have said we do not think it the correct approach to deal separately with the reasonableness of the substantive decision to dismiss, and the reasonableness of the procedure adopted. The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances.”

The Respondent contends that the disciplinary process and outcome was entirely reasonable. It cannot seriously be contended that dismissal was outside the range of reasonable responses having regard to the Complainant’s conduct.

In all of the circumstances, it is submitted that the Complainant’s claims ought to be dismissed.

CA 0011697-001

Section 6 of the Unfair Dismissals Act 1977, as amended, provides as follows:

(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.

(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.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if [the adjudication officer or the Labour Court], as the case may be, 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.

The claimant alleges that he was unfairly dismissed from his employment on the 10th day of June 2016 in circumstances where the investigation and disciplinary process adopted by the respondent was so flawed that it was in breach of the principles of fair procedures and natural justice.

I must assess whether the decision to dismiss the claimant was reasonable in all the circumstances. I do not have jurisdiction to substitute my view of the complainants behaviour for that of the employer. Foley v Post Office was cited with approval by McGovern J. of the High Court in the context of a wrongful dismissal claim in Doyle v Asilo Commercial Limited [2008] IEHC 445:

“It is not the function of the courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mummery LJ stated in Foley v The Post Office [2000] ICR 1283 at page 1295:

“The employer, not the Tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.

The employer has a zero tolerance in relation to the type of behaviour, the subject matter of the complaint, on the factory. The factory floor is littered with large dangerous machinery with moving parts. An altercation of the type complained of herein could lead to very serious consequence or even death, if not managed correctly. The complainant in his evidence accepted the policy and the reasons for it. He did not accept that he “struck” Y on the day in question. He said that he “pushed him and may have made contact with the side of his face.” In any event is it clear from the evidence of both parties that an altercation took place and that the complainant’s hand made contact with Y’s face. The respondent having carried out a thorough investigation concluded that the matter should progress onto a disciplinary hearing. I am satisfied that the conclusion reached by the investigation officer was nothing more than that. I am satisfied that the conclusion that the matter was very serious and could amount to gross misconduct was said to justify its progression into a disciplinary process and nothing else.

The respondent’s decision to suspend the complainant four weeks after the alleged assault warrants further analysis. The respondent states that it did not want to suspend the complainant until it had all of the facts, which said facts would be the foundation for the decision to suspend or not suspend. Having accumulated all of the facts they came to the conclusion that suspension was necessary to prevent any potential repetition of the incident. That argument is weakened in light of the fact that the complainant had worked alongside Y for those four weeks without incident.

Bank of Ireland v Reilly 2015 IEHC 241 Noonan J stated:

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future. As noted by Kearns J in Morgan v Trinity College, there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation which the conduct in issue is known by those doing business with the employer. In general, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.”

Whilst I accept that the longer the complainant worked with Y post incident the weaker the argument in favour of suspension gets. However, on the balance of probabilities, based on the respondent findings following the investigation and on the fact that a re-occurrence could have resulted in very serious injury (caused by the machines) they were justified in suspending him. Furthermore, I note that the complainant did not raise the issue of his suspension either during the disciplinary hearing or at the appeal stage.

I find that the process adopted by the respondent, whilst not perfect, was fair and objective and did not infringe upon the complainant’s rights to fair procedures. I also find that the decision to dismiss him was reasonable and proportionate in all of the circumstances.

CA 00011697 – 001 The complaint fails.

CA 00011697 – 002

Minimum Notice & Terms of Employment Act, 1973

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

The complaint is entitled to eight weeks’ notice. The respondent has already paid to the complainant 3 weeks notice. Therefore, he is entitled to five weeks, amounting to €3,625.00

Complainant

Respondent

Anonymised Parties

A worker

A Company

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-00011697-001

01/06/2017

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

CA-00011697-002

01/06/2017

The complainant categorically denies punching or striking anyone in the workplace. He states that in or around Christmas 2014 that is when things start to go downhill for him. He would go to work every day but generally he was feeling very down. He was taking everything personally. He was doing his best to get the best out of all of the Machines and to increase his productivity level but he felt that no matter what he did it wasn't good enough. He knew that his bosses were not happy. He started to have panic attacks and his anxiety levels increased. In 2014 / 2015 he took on an additional role. He felt it was his responsibility to manage everything but didn't feel at that time he was capable of doing so. His line manager noticed his mood and did ask him on one occasion if he was feeling ok. He told him that he was having a few issues and that work was getting him down. His line manager, he accepts, did attempt to get him off the machine that he was working on at that time. He knew there was something wrong with him but he did not know exactly what it was. He accepts that despite these issues his attendance record was excellent for that period of time.

On the day in question, 21 April, 2016 the complainant stated that he was extremely frustrated because there was a blockage further down the line and it was not caused by him. The blockage delayed him for about 20 minutes which had a knock on effect on his work progress. Due to the frustration he accepts that an altercation did occur between himself and Y. The complainant in cross examination admits that he pushed Y away and that he may have caught him on the side of the face. He also admits that he said to a colleague “you saw nothing” he did so because he knew he was going to get into trouble he also knows now that he shouldn't have said it al all.

At the time of the investigation and disciplinary hearing, the complainant accepts that he had not put the respondent on notice of his mental health issues. It wasn't until after he was dismissed that the respondent was put on notice.

The complainant had concerns about the fairness of the entire disciplinary and investigation process. He stated that it would seem from the investigation report that the investigation officer made a decision as to his “ guilt or innocence” . It is stated in his investigation report that the Complainant’s “conduct was capable of amounting to gross misconduct” and recommended that the Respondent should invoke its disciplinary procedures in respect of the Complainant’s actions. It wasn’t open to the investigation officer to decide whether or not the conduct amounted to gross misconduct of not and in doing so he over stepped his jurisdiction rending the process from that point onwards flawed.

The respondent suspended the complainant, it says the suspension was necessary do to the nature of the allegation and to prevent any further potential occurrence. However, in circumstances where the complainant was not suspended for four weeks post incident the respondent estopped from making that argument.

It is submitted that the Respondent’s decision to dismiss the Complainant on 10th June 2016 was wholly justified and that there were and are substantial grounds justifying that decision.

Following the incident of 21st April 2016, the H&S Manager of the Respondent, V, was appointed to carry out a full investigation into the complaint of assault made by Y against the Complainant which was alleged to have taken place at the Asahi Machine on the Respondent’s premises. A formal complaint was made by Y on the evening of the 21st April 2016, to his Supervisor ‘W’, alleging that the Complainant had punched him on the right side of his face, following a verbal altercation between himself and the Complainant between 7pm and 7.10pm.

Upon being reported to the Respondent’s management, the matter was fully investigated by V within the Respondent, who found, inter alia, that the conduct of the Complainant on 21st April 2016 was capable of constituting gross misconduct within the meaning of the Respondent’s disciplinary policy and under Section 41 of the Respondent’s Works Agreement with SIPTU Printing Trades Branch dated November 1999, as amended in April 2006. A recommendation was made that the Respondent’s disciplinary procedures ought to be invoked in respect of the Complainant’s conduct. Following the incident, W, in the presence of Z, Quality Control, took statements from each of the witnesses present, being the Complainant, Y and K . V wrote to the Complainant and Y on 26th April 2016, outlining the scope of his investigation. V interviewed all persons in attendance at the incident (the Complainant, Y and K).

In his investigation report dated 18th May 2016, V concluded, inter alia, as follows:

“I believe that [the Complainant] was the main aggressor in the altercation with Y. He, when admittedly annoyed and frustrated, initially threw the offending boxes on the table beside Y and sought clarification from him as to whether or not Y was looking for them. Clearly, Y was not looking for them, as they would be considered WIP waste. [The Complainant’s] comment therefore to me was no doubt meant as a sarcastic criticism of Y and [the Complainant] would have known this. [The Complainant] then proceeded to follow Y onto the platform or the platform step of the Asahi machine and by his own admission square up to Y. There was an exchange of words where both men could be accused of egging each other on so to speak but it is clear that [the Complainant], though his actions in following Y, squaring up to him and ultimately physically striking him, was the main offender here. I do not believe the exchange of words between the two was justification for [the Complainant] to strike Y and the fact that Y did not engage in the squaring up event before the physical contact was made indicates to me that he cannot be blamed for the actions of [the Complainant].

I do not believe [the Complainant’s] behaviour in following Y and engaging in a verbally abusive conversation was appropriate or reasonable behaviour in the workplace.

The act of squaring up to another employee is in my view a physical threat which is unacceptable in the workplace of the respondent.

Making physical contact with another employee, whether that be a punch, shove of push is unacceptable in the workplace of the respondent. [The Complainant] says he made contact with Y to dis-engage from him but I find that version of events hard to accept. [The Complainant] has admitted that he squared up to Y and that Y was not aggressive to him when doing so. This is confirmed by the only independent witness, K. It seems logical therefore to me that if [the Complainant] wished to dis-engage all he had to do was step back from Y and return to his workstation. To me the punch / push / shove that followed was a further act of intimidation on the part of [the Complainant] towards Y which cannot be explained or excused as an attempt to disengage.

Saying to another employee, after they have witnessed a serious incident at work, that they have, “seen nothing” is a serious attempt to interfere in a company investigation and also can only be seen as a threat to the employee it is said to. The Complainant’s behaviour in saying that to K is in my view unacceptable behaviour in the workplace of the respondent.

The Complainant confirmed at interview and in his statement that Y initially told him to bring any complaints he had about the blockage to the tunnel to his supervisor W. I don’t accept that even if this was said in a sarcastic way that the Complainant reacted appropriately or was justified in following Y at the Asahi machine. I believe that the presentation of the boxes that had blocked the machine by the Complainant to Y with the question of whether or not Y was looking for them was an act of provocation which started the verbal altercation. I therefore believe that regardless of what was said during the verbal exchange it was ultimately started by the Complainant. He therefore should take most, if not all, of the responsibility for it. I therefore believe that no action should be taken against Y with respect to the verbal altercation and the incident itself.

While the Complainant has expressed his regrets about the incident to me and while I believe he is sorry for what has happened and what he says in relation to attempting to apologies to Y it does not change the fact that what occurred on the night of the 21st April 2016 was a very serious matter.

On foot of his findings, V determined that the Complainant’s conduct was capable of amounting to gross misconduct and recommended that the Respondent invoke its disciplinary procedures in respect of the Complainant’s actions.”

Q, Operations Manager of the Respondent, was appointed to conduct a disciplinary process in accordance with the Respondent’s agreed procedures. A disciplinary hearing was held on 30th May 2016, at which the following personnel were present:

             the Complainant

(ii)        SIPTU Representative

(iii)       SIPTU Shop Steward

(iv)       V (HSE Manager, and Investigator)

(v)        W (Shift Superviser)

7.     Immediately following the disciplinary hearing and arising from the evidence given therein the following individuals were interviewed:

(i)         A

(ii)        B

(iii)       C

(iv)       K

(v)        Y

The Complainant was furnished with a copy of the minutes of the disciplinary hearing and a copy of the interview notes relating to the five individuals above.

In his decision, Q upheld the findings of V in his investigation report dated 18th May 2016. Q also made the following additional observations:

“I believe the appropriate action that you should have taken when you exit the underground waste tunnel was to walk away and report the matter to W if you felt particularly aggrieved by it. It was not appropriate for you to confront Y on it and to continue to confront him on it once he had directed you to W.

I believe Y was telling the truth when he said to V that all he wanted to get on with his job but was followed and abused by you. This is confirmed by K in his account of what happened and you in your own statement say that you followed Y up to the Asahi machine. I therefore believe that you were the main aggressor in the argument and the main reason it continued as it did. I also do not believe you when you say that you did not lean your heads towards Y. I accept, as more reliable, the evidence provided in that regard by K who confirms that you did and that Y refrained from reacting to this. This was threatening and abusive behaviour on your part, which in my view was unacceptable. An employee in my view is entitled to be left alone at his machine to carry out his work without distraction or abuse. This is especially so and necessary where heavy machinery is involved.

Regardless of who started the verbal altercation K in his statement maintains that the first sarcastic comments were made by you when you presented the boards to Y and given you have confirmed to V that you were angry at the time I am inclined to believe him) an act of physical violence is completely unacceptable and the only one who resorted to that was you. All employees have the right to work in a safe environment and employers must do their best to ensure that right. This employer’s duty includes, in my view, protecting employees from their fellow workers where that co-worker is acting in a threatening and abusive manner.

I have considered the version of the events surrounding the punch / shove that you have put to me at the disciplinary hearing. In essence you say that you tried to push Y away to disengage from a verbal altercation and accidentally connected with the right side of his face with your open hand. In your initial statement you said Y, “turned away so I reached out and shoved him on the right side of his face”. Y himself said in his statement, that “as I turned to walk away [the Complainant] punched me in the right side of my face. [The Complainant] was standing side-on waiting on my reaction”. It is clear to me from both your statements and the accepted point of contact, that Y was walking away from you at the time of impact. For your right hand to strike the right side of his face in circumstances where he was facing you, it would require you to reach across his chest with your right hand. I believe Y had turned away from you and was therefore disengaging from the verbal altercation at the time. I do not accept that your punch or shove was an attempt to disengage from Y as he had already done so. To me it was, at the very least, a further act of provocation or intimidation on your part and entirely unacceptable. The fact that you admittedly positioned yourself thereafter for a retaliatory response from Y further confirms to me that you expected it to happen and maybe even intended for it to happen. That is not the reaction I would have expected from someone who had accidentally shoved a work colleague regardless of what verbal altercation had gone before.

I do not accept your assertion that Y influenced K before K made his statement. I am satisfied that K is speaking honestly about what he saw. He has been interviewed more than once on it as well as providing a statement. To allege that Y has interfered with the only independent witness to the incident is a serious allegation in itself. That allegation, which I believe is unfounded, taken against the background where it is accepted that you yourself tried to influence K with respect to his statement could be seen as misconduct in itself.

In determining the appropriate sanction to be imposed in the circumstances, Q stated as follows:

In coming to a view on the appropriate sanction I have taken into account your 15 years of service with the respondent. I have considered what disciplinary sanction is appropriate and in particular, as dismissal is a last resort, I have contemplated whether a sanctioned less than dismissal could be imposed. Unfortunately, your actions on 21 April last are, in my view, too serious. I have with regret therefore concluded that dismissal is not a disproportional sanction and that in fact it is the most appropriate sanction in this case”

The Complainant was dismissed with immediate effect on 10th June 2016.

In accordance with the Respondent’s procedures, the Complainant was afforded a right of appeal. At the Complainant’s request, the progress of the said appeal was postponed on stated medical grounds. The Complainant’s grounds of appeal were set out in a letter dated 12th May 2017. The appeal was conducted by D, General Manager of the Respondent, and an appeal hearing was conducted on 26th May 2017 at which the Complainant and his SIPTU representatives were in attendance.

In his decision dated 21st June 2017, stated as follows:

“I am satisfied from the information before me that the procedures adopted by the company were fair and that there was a competent assessment of the available evidence”

He went on to state that:

“Overall I am satisfied that from the evidence I have seen there was a significant physical contact made by you to the right side of Y’s face which was something more than an accidental or dismissive push. The point of that contact (on the right side of Y’s face), indicates strongly to me that Y was walking away or at least attempting to and trying to disengage from you, at the time. I do not believe that you were attempting to get away from him.”

Regarding the medical evidence of depression presented by the Complainant at the appeal stage, D stated as follows:

“It has been put to me that I should take into consideration your health issues at the time of the incident in April 2016. Your problems in that regard we’re not brought to the attention of Q despite him asking you at the disciplinary hearing if you wanted to advise him of anything or if there were any mitigating factors you wanted him to be aware of. As you know the disciplinary hearing took place on 30 May 2016, over five weeks after the incident on 21 April 2016. At no time during that period and in particular during V’s investigation, was the issue of your health brought to V’s or Q’s attention. Your SIPTU representative stated at the appeal hearing that depressed people normally do not divulge such information. Unfortunately, I have to question that opinion in your case against a background where you maintain that before the incident on 21 April 2016 you told W that you were taking medication. I have spoken to W and while he does has a recollection of a discussion with you on personal issues outside work he does not recall you saying to him that it would potentially impact on your ability to work or deal with work issues. The fact that you now maintain that you had told W you were taking medication, to me undermines the argument that you were too embarrassed or afraid to mention it to V or Q. Simply put, if you understand the company already knew about your mental health difficulties and that you were taking medication for it, then there shouldn’t have been any real difficulty in reminding the company of that fact during the investigation and disciplinary hearing.”

It is respectfully submitted that the procedures adopted by the Respondent and the ultimate decision to dismiss the Complainant were entirely fair, reasonable and proportionate having regard to the seriousness of the Complainant’s conduct. It simply cannot be contended that the Respondent’s decision was outside the range of reasonable responses having regard the Complainant’s conduct (including his admitted conduct). In the premises, the respondent submits that the Complainant’s claim should be dismissed

The Respondent submits that it is not the role of the Adjudication Officer to substitute his or her view of the Complainant’s conduct for that of the employer but rather to establish whether or not the decision to dismiss within the “band of reasonable responses” available to an employer finding itself in the position of the Respondent.

The “band of reasonable responses” test was developed first by the English Courts in response to a tendency by Industrial Tribunals (now referred to as Employment Tribunals and broadly equivalent to the Adjudication Service) to deal with cases on the basis that there was only one objectively fair and reasonable decision that could have been reached and that, if the decision taken by the employer did not agree with the decision that would have been taken by the Tribunal applying the "reasonable employer test", there was an unfair dismissal. In those circumstances the Industrial Tribunal tended to substitute their view for that of the employer.

The flaws in this approach were confirmed by the English Court of Appeal in Foley v Post Office [2000] ICR 1283. As stated by Mummery L.J. (at p. 1295):

“This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer's decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response."

This principle was elaborated upon by the same Judge in the decision of the English Court of Appeal in Anglian Home Improvements Limited v Kelly [2005] ICR 242:

“The first criticism is that the employment tribunal did not correctly direct itself in law to the appropriate range of reasonable responses test. The test has been well established since the early days of unfair dismissal claims. It is still impossible to improve on the passage from the judgement of Lord Denning MR in British Leyland UK Ltd v Swift [1981] IRLR 91, 93 para 11 cited by Mr. Laddie. The test laid down there was:

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him."

Years later, the same test was confirmed by the Irish High Court in Foley v Post Office [2000] ICR 1283. Foley v Post Office was cited with approval by McGovern J. of the High Court in the context of a wrongful dismissal claim in Doyle v Asilo Commercial Limited [2008] IEHC 445:

“It is not the function of the courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss”. As Mummery LJ stated in Foley v The Post Office [2000] ICR 1283 at page 1295:

“The employer, not the Tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response."

As appears from the passage cited with approval by McGovern J, the “reasonable responses” approach extends to the investigation carried out.

The decision of the English Court of Appeal in Foley, which has been explicitly approved by the Irish High Court, is to the effect that this approach is equally flawed. Rather, the correct approach is to consider whether the investigation carried out was reasonable in all of the circumstances. Further, the question of reasonableness in the context of process is not to be regarded as a separate question.

This approach is explained in the decision of Browne-Wilkinson J. (sitting as a member of the English Employment Appeals Tribunal) in Iceland Frozen Foods v Jones [1983] 1 ICR 17:

“Reverting now to the facts of this case, it is suggested that notwithstanding the misdirection, we can uphold the decision of the industrial tribunal on the ground that on any footing it was manifestly unreasonable for the employers to dismiss in the circumstances of this case. The industrial tribunal obviously regarded the employee's faults as minor ones. We cannot accede to the view that notwithstanding the misdirection we can substitute our own decision in this case. Take, for example, the failure to lock the office and to set the alarm. The industrial tribunal took the view that the offence was comparatively trivial; it does not necessarily follow that all reasonable employers would share their view on the matter. It may well be that the misdirection on this point is fundamental to the decision of the case. We do not know enough of the circumstances of the employer's business to decide whether the importance which they obviously attached to the breach of security was such that a reasonable employer might take the view that the risk which security was too great to allow the risk to continue. We express no view to the point one way or the other. We simply cannot decide the matter ourselves on the material we have before us.

As to the alternative ground relied on by the industrial tribunal, namely, procedural unfairness, as we have said we do not think it the correct approach to deal separately with the reasonableness of the substantive decision to dismiss, and the reasonableness of the procedure adopted. The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances.”

The Respondent contends that the disciplinary process and outcome was entirely reasonable. It cannot seriously be contended that dismissal was outside the range of reasonable responses having regard to the Complainant’s conduct.

In all of the circumstances, it is submitted that the Complainant’s claims ought to be dismissed.

CA 0011697-001

Section 6 of the Unfair Dismissals Act 1977, as amended, provides as follows:

(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.

(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.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if [the adjudication officer or the Labour Court], as the case may be, 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.

The claimant alleges that he was unfairly dismissed from his employment on the 10th day of June 2016 in circumstances where the investigation and disciplinary process adopted by the respondent was so flawed that it was in breach of the principles of fair procedures and natural justice.

I must assess whether the decision to dismiss the claimant was reasonable in all the circumstances. I do not have jurisdiction to substitute my view of the complainants behaviour for that of the employer. Foley v Post Office was cited with approval by McGovern J. of the High Court in the context of a wrongful dismissal claim in Doyle v Asilo Commercial Limited [2008] IEHC 445:

“It is not the function of the courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mummery LJ stated in Foley v The Post Office [2000] ICR 1283 at page 1295:

“The employer, not the Tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.

The employer has a zero tolerance in relation to the type of behaviour, the subject matter of the complaint, on the factory. The factory floor is littered with large dangerous machinery with moving parts. An altercation of the type complained of herein could lead to very serious consequence or even death, if not managed correctly. The complainant in his evidence accepted the policy and the reasons for it. He did not accept that he “struck” Y on the day in question. He said that he “pushed him and may have made contact with the side of his face.” In any event is it clear from the evidence of both parties that an altercation took place and that the complainant’s hand made contact with Y’s face. The respondent having carried out a thorough investigation concluded that the matter should progress onto a disciplinary hearing. I am satisfied that the conclusion reached by the investigation officer was nothing more than that. I am satisfied that the conclusion that the matter was very serious and could amount to gross misconduct was said to justify its progression into a disciplinary process and nothing else.

The respondent’s decision to suspend the complainant four weeks after the alleged assault warrants further analysis. The respondent states that it did not want to suspend the complainant until it had all of the facts, which said facts would be the foundation for the decision to suspend or not suspend. Having accumulated all of the facts they came to the conclusion that suspension was necessary to prevent any potential repetition of the incident. That argument is weakened in light of the fact that the complainant had worked alongside Y for those four weeks without incident.

Bank of Ireland v Reilly 2015 IEHC 241 Noonan J stated:

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future. As noted by Kearns J in Morgan v Trinity College, there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation which the conduct in issue is known by those doing business with the employer. In general, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.”

Whilst I accept that the longer the complainant worked with Y post incident the weaker the argument in favour of suspension gets. However, on the balance of probabilities, based on the respondent findings following the investigation and on the fact that a re-occurrence could have resulted in very serious injury (caused by the machines) they were justified in suspending him. Furthermore, I note that the complainant did not raise the issue of his suspension either during the disciplinary hearing or at the appeal stage.

I find that the process adopted by the respondent, whilst not perfect, was fair and objective and did not infringe upon the complainant’s rights to fair procedures. I also find that the decision to dismiss him was reasonable and proportionate in all of the circumstances.

CA 00011697 – 001 The complaint fails.

CA 00011697 – 002

Minimum Notice & Terms of Employment Act, 1973

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

The complaint is entitled to fifteen weeks’ notice amounting to € 10,875.00