Complainant

Respondent

Anonymised Parties

A Mechanic

A Truck Repair Garage

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-00022665-001

15/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00022665-002

15/10/2018

The Complainant was employed by the Respondent as a mechanic from 26th June 2017 until the 5th September 2018. He was paid €768.00 gross and €603.66 net and he worked 45 hours per week. He is claiming that he was unfairly dismissed.

The Complainant was employed by the Respondent as a mechanic and he worked in a garage with two other people, one a fourth year apprentice and the other a fully qualified mechanic. The Complainant said that at times there were tensions in the garage because the other employees did not clean up after themselves. He said Mr. A, the fourth apprentice was supposed to clean up the garage after his jobs, but he didn't. He said that there were tensions in the garage because of the state of it. On the 30 the August 2018 he was taking his morning break in the canteen and he said to Mr. A after he put the milk back in the fridge “see how I put things back where they belong” and tapped him on the back of the head. He said that it was a friendly tap and meant as a joke.

The Complainant said he went outside to have his tea and suddenly, he was pushed from behind and he flew forward into a mini digger which was parked there. He said he tripped and fell, and his cup smashed to the ground and his phone fell to the ground. He said as he got up and looked around he realised it was Mr A who pushed him. Mr A continued to push and shove him around complaining about being hit on the head. He explained to Mr. A that it was only a playful tap on the head. He said that, Mr. A, who is about a foot taller than him was towering over him and after they exchange some words Mr. A left and went back to the canteen. The Complainant said he was very annoyed about what happened, and he picked up a rock and walked into the canteen with it. They exchanged words again and Mr A then started pushing and shoving him again and took the rock of him.

The Complainant said that he then left the canteen and threw the rock outside. He went to his manager and complained about the altercation. He said he was very agitated about what had happened, and he needed time to cool off and he left and his car and went home. Later that afternoon the Complainant said that he was called to a meeting by the manager which was arranged to take place the following morning. The Complainant said he attended the meeting with his manager and he explained what happened the manager said the matter would have to be investigated. He was put on leave with pay. He was then called to another meeting with the Health and Safety Officer and the manager. He said they went through everything that happened and then the manager accused him of bullying other staff. At the end of the meeting he asked the manager about his job and he was asked to leave his keys and the car. On the 7th of September he got a letter informing him of his dismissal. He said that the procedures were never brought to his attention and he did not believe the company had any disciplinary procedures.   He said that the way he was dismissed was unfair and he was not advised to bring a representative to the meeting.

The Respondents stated that on the 30th of August 2018, the Complainant come into his office to say that an employee had assaulted him and that he could not stay around, and he was leaving. The Respondent said he asked the Complainant what had happened, and he told him that he could not tell him because it may get another person into trouble. He told the Complainant that he would have to investigate the incident, but the Complainant got into the company car and went home. The Respondent stated that he then went into the garage to investigate the incident with the two other employees. They were in the canteen and he asked them separately what had happened. 

Mr. B, who is a qualified mechanic told him that there had been friction between the Complainant and Mr. A, who is a 4th year apprentice mechanic, all morning. He told him that the Complainant had been bullying Mr. A about tools and access to a pit in the garage workshop. In the canteen the Complainant slapped Mr A on the back of the head stating he puts back things where they belong. The Complainant then left the canteen and Mr A, who was angry, followed him out to the wash bay where an altercation occurred. Mr. A returned to the canteen and the Complainant came in after a few minutes with a lump of concrete raised over his head. He threatened Mr A who jumped up and took the concrete from him and put it on the table. The Complaint then left the canteen with the concrete and threw it away. Mr. B told the manager that he was very fearful that the Complainant would throw the concrete.

The Respondent said that he then spoke to Mr. A who explained his side of the argument and it was very similar to that of Mr. B's account. Mr. A told the Respondent that the Complainant had insulted him and called him names in a dispute about the use of a pit. The Complainant refused to let him bring a truck over the pit for repairs. They were all in the canteen when the Complainant put the milk on the table and said to him, after slapping him on the back of the head, that he put things back where they belong.

Mr. A told the Respondent that he felt he had no choice but to confront the Complainant and he followed him out after canteen. He confronted the Complainant and after some words and some pushing and shoving the Complainant stumbled backwards against the mini digger and dropped his mug of tea. Mr. A returned to the canteen and a few minutes later the Complainant came in with a lump of concrete over his head.

The Respondent said that he then consulted with the Accounts/HR manager and they decided to call the Complainant to meeting the following day. The Complainant attended, and the HR manager was also present. The Complainant was asked to provide his account of events which he did. The Respondent told him that he had interviewed the other employees and he had considered that he had perpetrated a very serious incident.

The Respondents said that he told the Complainant that he considered his actions were excessive and was a very serious threat particularly in the small space in the canteen. The Complainant explained that he did not intend to throw it, but he intended to scare Mr B. The meeting was adjourned, and it was agreed that they would meet again the following week and the Complainants was suspended with pay.

A further meeting took place with the Complainant, the HR manager, the Health and Safety manager together with the Respondent on the 5th of September 2018. The Respondent asked the Complainant to outline his actions to the H&S Manager which he did. The H&S manager told the Complainant that he had read the statements of the other employees he had detected the bullying off Mr B by him. The Complainant denied that he was bullying Mr. A or that he had ever bullied another apprentice who had recently left the employment. The Complainant repeated that he never intended to throw the concrete. The Respondent said that the Complainant showed no remorse for his actions and that he feared a repeat by him of violence in the workplace. He had no choice but to terminate his employment and he informed him accordingly.

He confirmed the dismissal to the Complainant in a letter dated 7th September 2018. The Respondent said that the main reason for the dismissal of the Complainant was the fact that he had taken a lump of concrete into the canteen which is a confined space, but he also took into consideration, to a lesser extent, the statement by Mr. A that the Complainant was bullying Mr B and had bullied a former employee.

The Respondent submitted that they acted reasonably and fairly in accordance with section 6(7) of the UD Act. Section 6 of the Unfair Dismissals Act 1977 as amended provides inter alia 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.”

Subsection (4)(b) provides that: “the dismissal of an employee will not be unfair if it results wholly or mainly from inter alia the conduct of the employee”.

(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, and

(b) to the extent (if any) of the compliance or failure to comply by the employer,

in relation to the employee, with the procedure referred to in section 14 (1)

of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section7 (2) of this Act.

Therefore, the burden of proof rests with the Respondent to demonstrate the dismissal was neither substantially nor procedurally unfair.

The Respondent said he had a responsibility to all of his employees and he dismissed the Complainant because he was not remorseful over his actions and he was faithful of any repeat of such conduct in the future. He said he also took into consideration the allegations of bullying by the Complainant which he learnt about from the other employees.

I note that the Respondent has no written disciplinary procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146/ 2000. The Respondent held an investigation meeting with the Complainant and then had a follow-up meeting, but he was not advised bring representation if he wished to either meeting, nor was he advised that his job was at risk.   The statements made by Mr. A and Mr. B. were read out to him and he was not given a copy, nor did he get an opportunity to respond. I note that the Respondent took these statements into consideration in making the decision to dismiss. Furthermore, it is clear that the Respondent, in making the decision to dismiss the Complainant, gave some weight to the allegations of bullying contained in the statement. These are new allegations and were not part of the original investigation. 

It is in breach of fair procedures and natural Justice to introduce new allegations once the investigation had commenced and to take these new allegations of bullying and harassment into consideration in making the decision to dismiss, given that the Complainant had no right of response. I also note that there was no right of appeal from the decision of the Respondent, all of this suggests that the unwritten procedures followed by the Respondent where ad hoc rather than transparent and identifiable procedures. For these reasons I find the dismissal was procedurally unfair.

Looking objectively at the decision to dismiss the Complainant against the sequence of events which occurred and the conduct of the Complainant vis a via the conduct of Mr. B, there has to be some correlation between the scales of sanctions imposed on the Complainant and that imposed on Mr. B as both were culpable in initiating the altercation though the Complainant’s action was more serious than that of Mr. B.   However, the sanction imposed on Mr. B was a written warning while the ultimate sanction of dismissal was imposed on the Complainant. I note that Mr. B was also offered an opportunity to respond to the sanction imposed and to file a grievance in accordance with the company’s grievance procedures. No such offer was made to the Complainant nor was he given an opportunity to appeal the decision to dismiss him. The Respondent did not consider any other sanction to dismissal for the Complainant. It is evident therefore, that there were clear inconsistencies in the treatment of the Complainant in the application of the sanctions.

I have concluded therefore that the sanction of dismissal was disproportionate in the circumstances.   I find that the dismissal was both substantially and procedurally unfair.

However, I am satisfied that the Complainant contributed to his dismissal and in awarding compensation for financial loss, I have reduced compensation awarded by 50%. I am not satisfied that the Complainant made sufficient efforts to mitigate his loss following his dismissal and was still unemployed at the date of the hearing. I note that he turned down a job and he did not produce any evidence that he was seeking alternative employment and accordingly I have reduced his financial loss to 10 weeks. Applying the reduction of 50% to this amount, I award the Complainant €2,400 for financial loss.

I find that the Complainant was unfairly dismissed, and I award him compensation for financial loss in the amount of €2,400

The Industrial Relations claim was withdrawn at the hearing

Unfair Dismissals Act, procedures,