Complainant

Respondent

Anonymised Parties

An employee

An employer

Representatives

Barnaba Dorda SIPTU

Conor O’Gorman, IBEC.

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-00014153-001

22/09/2017

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

CA-00014153-002

22/09/2017

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

CA-00014153-003

22/09/2017

The Complainant commenced employment with the Respondent on 28/06/2008, he was employed as a cleaner in the Respondent’s warehouse operation.

Following an altercation with a fellow employee the Complainant was dismissed from his employment on 21/07/2017.

At the time of dismissal, the Complainant was receiving a net weekly payment of €456.00 per week.

On 29 June 2017, it was alleged that the Claimant was engaged in a physical altercation with a colleague. More specifically it was alleged that the Claimant threw a full 2 litre carton of milk at the colleague, when this missed the colleague due to the colleague ducking, the Claimant ran up to the colleague and tried to grab and attack him.

Immediately following the alleged incident, the Claimant was called to a meeting with the Operations Manager. At this meeting the Claimant was advised of the serious allegations that had been made against him. He was advised that an investigation would take place and that if the allegations were upheld then it could amount to a finding of gross misconduct. Given the nature of the allegations the Respondent concluded that it was appropriate to suspend the Claimant on full pay pending the outcome of the investigation. Another Operations Manager, was appointed to investigate the allegation and the Claimant was advised that a meeting would take place on 3 July 2017. The foregoing (along with other procedural issues pertaining to the process) was communicated to the Claimant by letter of the same date.

The Company operates a comprehensive disciplinary procedure which allows for suspension with pay, the right to representation as per S.I. 146 of 2000 and specifies examples of dismissible offences including “Disorderly or indecent conduct or fighting/physical assault."

The investigation meeting with the Claimant took place on 3 July, 2017. The Claimant was accompanied at this meeting by an Employee Representative. Prior to this meeting the Claimant was provided with:

(a)                The company's disciplinary policy;

(b)                statement from his supervisor

(c)                statement from his intended victim

(d)                CCTV footage of the incident.

The investigators produced a report on 6 July 2017. The Report concluded that:

“The Complainant threw a 2 litre plastic bottle of milk at a colleague, on 29th June 2017.

The Complainant attempted to strike a colleague, on 29th June 2017.

The Complainant did not report any work pressure to a manager.

The Complainant did not report any alleged name calling or treatment of a similar nature to a manager either on or previous to the date of the incident.

The Complainant did not report any alleged previous threat to a manager and could not recollect the colleague’s name and does not want to pursue this alleged threat.

 Disciplinary Hearing

The Investigation Report was sent to the Supply Chain Manager.

The Supply Chain Manager reviewed the report and invited the Claimant to a disciplinary hearing on 13 July 2017. The Supply Chain Manager also advised that he could be accompanied at this meeting by a member of the HR team as notetaker.

The Complainant was accompanied at this meeting by his Employee Representative. At the hearing the following was put forward by the Complainant:

(e)                He had assaulted the colleague as alleged.

(f)                 This colleague had used inappropriate language to the Complainant    immediately before the incident.

(g)                Another colleague had used inappropriate language to the Complainant prior to the incident.

(h)                The Complainant alleged that he was struck by his colleague in the course of the altercation and this could be seen in the CCTV stills.

(i)                 On the day of the incident the Claimant had told his manager that he was under pressure and needed help but no help was forthcoming.

Following the meeting Supply Chain Manager interviewed the Complainant’s manager and asked whether the Complainant had asked for help as he was under pressure on the day in question. The Complainant’s manager could not recall the Complainant asking for help or complaining of being under pressure on that day or any other. A copy of this minute was provided to the Complainant.

After taking time to review all the evidence and considering the facts and circumstances the Supply Chain Manager issued his disciplinary outcome on 21 July, 2017. The fact that the Complainant had assaulted a fellow employee was not in dispute. The Supply Chain Manager on reviewing the CCTV footage and the witness statements could not see that the Complainant was struck as he alleged, instead he saw that the Complainant threw the milk and then attempted to strike his colleague. He also saw that the other employee was backing away from him. The Supply Chain Manager could not accept that name calling which was witnessed immediately prior to the physical altercation occurring could amount to sufficient provocation to justify the Complainant’s actions. The Company does not tolerate any such inappropriate behaviour and the Complainant as a long serving employee of the Company was aware that there was a mechanism that could be invoked for any behaviour that he considered to be inappropriate.

The Supply Chain Manager concluded that the Complainant’s actions amounted to “disorderly or indecent conduct or fighting/physical assault” in line with the Company’s Disciplinary Policy. The Supply Chain Manager concluded after careful consideration that the appropriate sanction was dismissal effective immediately. The Claimant was advised of his right of appeal.

Appeal

By letter dated 26 July 2017 the Complainant appealed the outcome of the disciplinary process. The Supply Chain Director, was appointed to hear the appeal. The Appeal Hearing took place on 9 August 2017. The main grounds of appeal were the name calling and pressure in work. The Complainant was accompanied at this appeal hearing by his Employee Representative. The Claimant was provided with a copy of the notes of the appeal hearing and was afforded an opportunity to comment on the notes. The Claimant provided comments on 17 August 2017 and these comments were incorporated into the notes.

On 23 August 2017, The Supply Chain Director issued the appeal outcome to the Complainant. The Supply Chain Director rejected the Complainant’s appeal and upheld the decision to dismiss.   The Supply Chain Director was satisfied, after careful consideration, that none of the matters put forward by the Complainant were sufficient to justify assaulting a colleague in the workplace. The decision to dismiss was thus upheld.

The Law

Unfair Dismissals Acts

It is submitted that the termination of the Claimant’s employment was not unfair.

The Respondent relies on Section 6(4) of the Acts as follows:

“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 of more of the following: -

a)…..

b) the conduct of the employee.”

The Respondent relies on the Employment Appeals Tribunal’s decision in Kenneth Walker v Maplin Electronics Limited where the relevant test to be applied for determining whether a dismissal for alleged misconduct is fair was stated to be as follows:

“…Did the employer have a genuine or reasonable, belief, based on reasonable grounds arising from a fair and adequate investigation that the employee is guilty of the alleged misconduct and finally whether the penalty of dismissal was proportionate to the alleged misconduct (Noritake (Irl.) Ltd. v. Kenna UD 88/1983)...”

It is well established in case law that in defending an unfair dismissal claim, an employer is not required to persuade an Adjudication Officer that the Adjudication Officer would have made the same decision to dismiss or indeed that every employer would have done so. Instead, all that must be shown is that it was reasonable for the employer to have made the decision that it did i.e. that the decision was within the band of reasonable responses.

1.2               This test was set out in a decision of the Circuit Court in Allied Irish Banks plc v Purcell in which Linnane J stated as follows:

“The correct test is: Was it reasonable for the employer 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.”

[quoting Lord Denning MR in the UK Court of Appeal case of British Leyland UK Ltd v Swift]

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

The Complainant was dismissed because of his serious misconduct.   Accordingly, his dismissal was not unfair as it resulted wholly from “the conduct of the employee”, in accordance with section 6(4) (b) of the Unfair Dismissals Act 1977 (as amended).   Following a thorough investigation and disciplinary meeting, the Complainant confirmed he had committed:

“Disorderly or indecent conduct or fighting/physical assault."

This offence is specified in the company’s disciplinary procedure as serious and allows for the summary dismissal of the employee.

Violence in the workplace is something that is intolerable in any context. Throughout the entire process the Complainant did not seek to deny his actions but rather tried to explain them by reference to provocation and/or a loss of self-control. The matter for consideration under such circumstances is whether these acts of provocation mitigated the assault in the work place.

The Company’s action in taking the decision to dismiss was in accordance with what a “reasonable employer” would have done in the circumstances.

The Company has robust and effective grievance and dignity at work policies in place. We do not condone name calling or belittling of staff by their colleagues and any complaints of same are dealt with under the appropriate policy. It was incumbent on the Complainant to raise any issues in accordance with the Company policies and procedures rather than take matters into his own hands. Such behaviour simply cannot be tolerated in a workplace environment.

The Complainant’s actions on the day could have resulted in serious injury to his colleagues and himself. It was only that the Complainant’s former colleague ducked that he wasn’t hit in the face with the 2 litre plastic bottle of milk. As an employer, we are deeply committed to health and safety in the workplace and the wellbeing of our employees. We are also concerned that the Company is vicariously liable for the actions of its employees and would be directly responsible for any injury which any party may sustain in these circumstances.

The Complainant’s actions amounted to a breach of the trust between the parties to the employment relationship. It is imperative that the Company can trust its employees to act with integrity and in accordance with policy. An integral part of this trust includes relying on employees to avail of and invoke the workplace processes and policies in place - that the Company is entirely committed to.

The Complainant was afforded all his rights to fair procedures, in line with best practice and the Company’s established policy, the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice.

Mitigation

Section 7(2) of the Unfair Dismissals Acts provides the following in relation to mitigation of loss:

“Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to –

c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures to mitigate the loss aforesaid.

  Minimum Notice Claim

As the Complainant was summarily dismissed for serious conduct he was not entitled to receive any notice or pay in lieu of notice.

Organisation of Working Time Act

The Claimant alleges that “[he] did not receive [his] outstanding entitlements for annual leave when [his] employment was terminated. It amounts to one day annual leave.”

The Respondent is satisfied that the Complainant was in fact overpaid in respect of his annual leave entitlements on the termination of his employment. The Complainant is placed on full proof in respect of any allegation that the Respondent has contravened the 1997 Act. The Respondent is satisfied that there is no basis on which the Complainant can allege he is entitled to 1 day’s annual leave.

  Conclusion

In conclusion, it is the Respondent’s position that the Complainant was dismissed by reason of his misconduct.   Accordingly, his dismissal was not unfair as it resulted wholly from “the conduct of the employee”, in accordance with section 6(5) (b) of the Unfair Dismissals Act 1977 (as amended).

Having regard to the nature of the Complainant’s dismissal, he is not entitled to notice. There has been no breach of the Organisation of Working Time Act 1997 and as such the Complainant’s claim in that regard cannot be upheld.

Having regard for the foregoing, the Adjudication Officer is respectfully requested to reject the Complainant’s complaint.

Background of the case

1.       The Complainant commenced his employment on 28th of June 2010 and was employed as cleaner.

2.       The Complainant was working for 7 years in the company’s warehouse and he was assigned to the afternoon shift. His main duties were to clean canteen, collect cardboards in the warehouse, clean loading bays and clean any water spillages.

3.       The Complainant was the only cleaner on the afternoon shift, while the morning shift had three cleaners on duty. The amount of work was the same for both shifts.

4.       Our member informally had complained about the workload but was told that there isn’t sufficient budget available to employ more staff on the afternoon shift.

5.       Apart from being under heavy workload, the Complainant was a target of inappropriate abusive comments. A few of his warehouse colleagues called him names and joked about him. However, he did not make any complaint about it prior to the incident.

6.       Throughout his employment the Complainant was not disciplined at all, and was not known for any inappropriate behaviour, including any violent conduct.

The incident

1.       On 29th of June 2017 the Complainant came to work around twenty minutes past one (that was earlier than usual as his afternoon shift starts at 2pm). At that time three cleaners from the morning shift were still on site, and our member helped one of them. At around 1:30pm he was approached by a warehouse worker who told our member that there is no milk in the canteen’s fridge. The Complainant told him that he was starting his shift at 2pm only. The colleague’s   response was ‘’ you f*** c***t”. There were no witnesses to that conversation but the Complainant reported it to his shop steward, and told him that he is getting ”dogs abuse out there”.

2.       Our member started work at 2 pm and was cleaning the aisles until 4 pm. At 4:30 pm he brought a bottle of milk into the canteen. He walked into the canteen and a warehouse worker told him twice: “You are late with the milk,” you b******”. The Complainant lost the plot, and threw the milk at him and said “I’m no b******”. Our member rushed towards him and tried to hit him, but was blocked . They were quickly separated by another colleague.

3.       Subsequently, the matter was reported to Operations Manager, and the Complainant was suspended on the same day pending the investigation. It was alleged that the Complainant was involved in a physical altercation with a colleague.  

4.       At the investigation meeting the Complainant was furnished with copy of statements. At the investigation meeting the Complainant confirmed that he threw milk at his colleague and that he tried to hit him (but to no avail). However, he also stated that he could not cope with all the name calling and being verbally abused in public. He admitted that he did not formally report similar incidents of a verbal abuse in the past. He also reported that he was under a severe workload and pressure as he was the only cleaner on the afternoon shift.

5.       Findings from the investigation report were that: The Complainant threw a 2 litre plastic bottle of milk at a colleague, and that he attempted to strike him. Furthermore, that he did not report any work pressure to a manager, that he did not report any alleged name calling or treatment of similar nature prior to the incident. Following the investigation our member was invited to a disciplinary meeting by the Supply Chain Manager.

6.       During the disciplinary meeting a supervisor was interviewed again and he confirmed that the Complainant had complained that there were more cleaners on the morning shifts than on his. The Supervisor explained to the Complainant that it was not possible to employ more cleaners due to insufficient budget.

7.       On 21st of July our member received the decision and his employment was terminated. The Manager stated that he is satisfied that the health and safety risk our member posed towards his intended target and others by throwing a two litre bottle of milk and this could have led to a serious injury. Also, he did not accept mitigating circumstances that being under work pressure was a satisfactory mitigating factor.

8.       The Complainant appealed the decision and an appeal hearing took place on 9th of August. At the appeal meeting the Complainant said that he reported the workload to a number of managers and he named one who made a note in relation to this. The Complainant confirmed that he did not make any formal complaint about the name calling or similar inappropriate behaviour.

9.       Upon reviewing the notes from the appeal meeting the Complainant added that he had been in the employment for 9 years, did not have any disciplinary issues, he had been getting on well with all managers and that he was 58 years of age.

10.   The Complainant received the outcome from the appeal on 23rd of August, his appeal was not upheld. The company were satisfied that there was a sufficient number of heads on cleaning duties on each shift and that threatening/name calling did not justify indecent conduct in a response. The Complainant appealed the decision to Workplace Relations Commission on 22nd September 2017.

Our case

1.       The Complainant has admitted that he threw a bottle of milk at his colleague. He has admitted that he tried to strike him as well. However, we believe that the company should have properly taken mitigating circumstances into the account and could have applied a different, less severe sanction.

2.       Mitigating circumstances: The Complainant understands that it is wrong to throw something at somebody or to make an attempt to strike somebody. However, what he did on 29th of June was out of character. On the one hand, he was under pressure due to workload. On the other – he had been verbally abused and on 29th of June, he could not handle it any longer.

3.       Workload – there are two shifts, one is from 6am to 2pm with three cleaners, and second from 2pm to 10pm with just one cleaner. The workload balance is extremely unfair to the Complainant compared to his three other colleagues from the opposite shift. The Complainant spoke about it with his managers, but to no avail.

4.       Verbal abuse – it is confirmed that the Complainant did not make any official complaint about being verbally abused or similar inappropriate behaviour. However, on the very day of 29th of June it was confirmed by two people, that the intended target called the Complainant, in the canteen, publicly, ‘a bastard’. Public verbal abuse directed at the Complainant is extremely inappropriate and humiliating behaviour.

5.       Exemplary record –the Complainant did not have any previous disciplinary warnings or engagement with HR in relation to any misconduct. His reaction on 29th of June was totally out of character and was “one- off” incident.

6.       Consistency – as per the company decision, the Complainant’s action constituted ‘disorderly or indecent conduct or fighting/physical assault”. It is our understanding that the intended target who admitted to calling our member ‘a b******’ was not disciplined at all

7.       The company disciplinary procedures states, inter alia that ‘This policy is designed to help and encourage all employees to achieve and maintain these standards (…)” and that “the main emphasis of this procedures is to promote and encourage improvement wherever possible by identifying problems at an early stage and identifying ways to rectify them”. Our member was not given any chance or any help to correct his one off inappropriate behaviour.

8.       The company policy further states that “An employee’s overall work record may be considered by the Company in determining what discipline should be imposed in a particular case”.

9.       The company policy also listed alternative sanctions other than dismissal including transfer to another location, department or suspension without pay for a period.

Organisation of Working Time Act

1.       Our member is seeking his outstanding 1 day of annual leave, as he believes he was entitled to it, but the company failed to pay him the proper balance of his holidays upon termination of his employment. Upon leaving his employment our member was entitled to 11 days of annual leave but the company paid him only 10 days.

Conclusion.

We respectfully ask that the Adjudication Officer to find in favour of the Complainant and re-instate him.

The version of events put forward by the representatives of both the Complainant and the Respondent in this case have a great deal in common and there appears to be no dispute regarding the facts of the altercation that took place on 29th June 2017.

It is to the Complainant’s credit that he has been totally honest at both the workplace investigation process and again at the hearing at the Workplace Relations Commission.

As the Adjudication Officer in this case I do not need to establish the facts, they have clearly been established. I do not have to place myself in the position of the Respondent and re-try the case, this has already been done and the decision to dismiss the Complainant was made.

My job in this case is to look at the reasonableness of the decision to dismiss.

The Respondent’s representative has very clearly stated:

“The Company’s action in taking the decision to dismiss was in accordance with what a “reasonable employer” would have done in the circumstances”.

Where an employer is confronted with information amassed by a fair and reasonable investigation, it should apply itself to it in a fair and reasonable way ‘as a prudent and concerned employer’ and reach its conclusion as to the appropriate disciplinary measure which should relate reasonably to the offence.

In this instant case the Respondent would appear to have very clear policies and procedures and have conducted an investigation, a disciplinary meeting and an appeals process exactly in line with these policies and procedures.

The Complainant was dismissed because of his serious misconduct. Accordingly, his dismissal was not unfair as it resulted wholly from “the conduct of the employee”, in accordance with section 6(4) (b) of the Unfair Dismissals Act 1977 (as amended). Following a thorough investigation and disciplinary meeting, the Complainant confirmed he had committed:

“Disorderly or indecent conduct or fighting/physical assault."

This offence is specified in the company’s disciplinary procedure as serious and allows for the summary dismissal of the employee.

Having considered all the facts of the case I’m unable to find that the Complainant was unfairly dismissed and for this reason the complaint fails.

The complaint under the Organisation of Working Time Act, 1997 was withdrawn at hearing after the Complainant received a full explanation of how to calculate holiday entitlement.

The complaint referred under section 11 of the Minimum Notice & Terms of Employment Act, 1973 fails due to the Complainant being summarily dismissed for gross misconduct.

Having considered all the facts of the case I’m unable to find that the Complainant was unfairly dismissed and for this reason the complaint fails.

The complaint under the Organisation of Working Time Act, 1997 was withdrawn at hearing after the Complainant received a full explanation of how to calculate holiday entitlement.

The complaint referred under section 11 of the Minimum Notice & Terms of Employment Act, 1973 fails due to the Complainant being summarily dismissed for gross misconduct.

Unfair Dismissal, Gross Misconduct.