ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00017530

Parties:

Complaint(s):

Date of Adjudication Hearing: 09/07/2019

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

The essential issue which falls to be determined is whether the Respondent acted reasonably in dismissing the Complainant from his employment by reasons of an admitted assault perpetrated by the Complainant upon a colleague, Mr. X on 4 July 2018.

It is not in dispute that on the day in question a heated exchange took place between the Complainant and Mr. X at the Respondent's premises in Galway. It is not in dispute that the Complainant struck Mr. X forcefully and in the face using an iron bar (otherwise described as an iron ruler) as a result of which Mr X sustained a significant facial laceration and required medical treatment as a result of which he was certified unfit for work.

The explanation provided by the Complainant for this serious incident is that he was acting in self-defence on the alleged basis that he had been attacked by Mr. X with a sheet of cardboard. It is a notable feature of the Complainant's written submission that his appeal seems to be predicated upon a number of alleged procedural failings - none of which are admitted - in circumstances where the essential issue to be determined is not in actual dispute, i.e. that the Complainant hit his colleague in the face with a metal bar I ruler.

Insofarasthereisarelevantfactualdispute,thatdisputecentresonthequestionof whetherMr. Xhad,infact,hittheComplainantwithapieceofcardboardbeforethe Complainantthenstruckhiminthefaceornot.Asappearsfromthecarefuldisciplinary processconductedbytheRespondent,theconclusionarrivedatwasthaton the preponderanceof evidenceavailable,theComplainant'sversionofeventswasnot acceptedandthatMr. Xhadnot,infact,firststruckhimwithapieceofcardboard.

It is submitted that this is a determination of fact which the Respondent was fully entitled to arrive at based on the information before it. However, notwithstanding this, it is further submitted that even if the narrative of events provided by the Complainant were accepted, none of this could justify the type of assault which then took place -whether in self-defence or otherwise.

In this regard, the decision of the Respondent's HR Manager is unimpeachably reasoned and states as follows:"You have admitted that you struck Mr. X with an iron ruler, which resulted in a facial injury to him. You maintained that you acted in self-defence. It stands to reason therefore that this was a conscious decision on your part and not an accident. You acted with a definite purpose and clearly knew what you were doing in striking a fellow employee in [SIC] the head with an iron ruler.

I do not believe that the altercation with Mr. X warranted such a response. As I have stated above, I believe that the act was an excessive use of force. The decision to strike Mr. X in the head with such an instrument could easily have had fatal consequences or resulted in a loss of an eye. I am also mindful that on the factory floor you are surrounded by heavy machinery which could have further added to the possibility of serious injury. I understand that an incident of this type is unprecedented in the company.

I am satisfied that your conduct on 4 July 2018 amounted to Gross Misconduct. I agree with Mr Y and the findings of the investigators in that regard. My decision is based on my own independent assessment of the evidence available as set out by me at the beginning of this letter.

In relation to the imposed sanction of dismissal, I do not believe that it was unnecessarily harsh or disproportionate in this case given that a finding of Gross Misconduct was made and I am of the view that the finding of Gross Misconduct was justified. I am satisfied that such an act of Gross Misconduct did result in a grave breach of discipline to warrant immediate dismissal under your terms and conditions of employment.

In making this decision I have taken into account your 19 years of service with the company and your employment record. I have considered if a sanction less than dismissal could be imposed but regrettably, in my view, it was the appropriate sanction in this case."

It is respectfully submitted that the decision to dismiss was, in all of the circumstances, a reasonable one and that the Complainant's application for relief under Sections 8 of the Unfair Dismissal Act 1977 must therefore fail. The facts and circumstances giving rise to this determination are more specifically set out below.

Following the complaint of assault made by Mr. X, an investigation team was appointed and they conducted a complete investigation interviewing all witnesses, taking photographs of the items involved, sketches of the location, examining the items involved and six statements from relevant staff. It is apparent from the statements in question that a heated exchange took place between the Complainant and Mr. X. The Complainant states that Mr. X struck him repeatedly over the head with a sheet of cardboard. This allegation is denied by Mr. X. The Incident in question took place while the Complainant was working at a location known as the "rotacut", during the course of which the Complainant was using an iron bar I ruler.

No disciplinary findings have yet been made against Mr. X as a result of the incident on the 04 July 2018 as he remains absent from work on medical grounds.

As a result of the investigation report, the Respondent's General Manager convened a disciplinary meeting on August 20th, 2018 with respect to the Complainant. At that meeting, the Complainant acknowledged receipt of the investigation report. At the conclusion of the meeting a disciplinary meeting was proposed to take place on 24 August 2018. On 22 August 2018, the Complainant's SIPTU representative made a number of observations on behalf of his client. On the same date, the General Manager responded by email in which he confirmed, inter alia, that the meeting provisionally set for 24 August 2018 would be postponed at the Representatives request. On 29 August 2018, The General Manager wrote to the Complainant's SIPTU representative providing responses to the queries that had been raised by Mr Hardy in connection with the investigation report and a follow up disciplinary meeting was then scheduled to take place on 31 August 2018. At the meeting of 31 August 2018, The General Manager delivered a reasoned decision in relation to the disciplinary complaint made against the Complainant.As appears from that decision, The General Manager concluded that: "Unfortunately, it is my belief that the serious nature of this striking offence causing bodily injury is too serious to warrant a lesser sanction than dismissal. Accordingly, you are hereby notified that (The Respondent) is terminating your employment immediately. You will receive 8 weeks' pay in lieu of notice as per section 10 of your Terms and Conditions of Employment plus any payment for holidays accrued. Your P45 will follow to your home address. With regard to an appeal against my decision I wish to confirm that you have a right to appeal my decision to the HR Manager Ireland. “You have 7 days from today to make that appeal in writing…”.

By letter dated 3 September 2018, the Complainant's representative submitted an appeal on his behalf. An appeal hearing was then convened, which took place on 12 September 2018. Having considered all of the information made available, the HR Manager Ireland provided a detailed written decision dated 9 October 2018, in which she rejected the Complainant's appeal and upheld the decision to dismiss. In arriving at her decision, the HR Manager Ireland had regard, inter alia, to a report from the Company doctor dated 19 September 2018. The report states, inter alia, as follows: “Mr. X was assaulted at work on 4 July 2018 by another employee. He reported the assault immediately to his supervisor and was brought to Galway Primary Care in Doughiska where he attended me for medical treatment immediately after the assault. Mr X was in attendance with the shop steward from (the Respondent). Mr. X was at work when he was struck on the right lateral nasal fold by a fellow employee with a metal bar which the fellow employee had been using on the rota cut machine at work at approximately 11.15 on 4 July 2018. The laceration was bifurcated. 1Omm and 7mm long and 1mm wide. The laceration was approximately 1mm deep. He had blood on his face and was feeling weak and drowsy with the sudden unexpected impact of the injury. A tetanus injection was given into his left deltoid IM by the nurse. He was treated with Augmentin and Nurofen tablets. He was advised regarding possible scar formation as well as possible signs of infection and required 3 steri-stips to the wound. He told me that he felt traumatized by the incident and needed to be booked off for a few days. he was advised to attend the surgery for review in 5 days."

In these proceedings, the Claimant claims that he was unfairly dismissed by the Respondent. The Respondent denies the claim and asserts that there were substantial grounds justifying the termination of the Claimant's contract of employment. The Respondent further asserts that the dismissal was reasonable in all the circumstances. The Respondent submits that the totality of the case apparently being made by the Claimant's solicitor amounts to nothing more than an attempt to re-run the disciplinary process. The Respondent submits that it cannot seriously be suggested that the sanction of dismissal, in all of the circumstances, was outside of the "band of reasonable responses" to the Claimant's conduct.

The Respondent notes that it is not the role of the Adjudication Officer to substitute his/her views 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 by the English Courts in response to a tendency by Industrial Tribunals 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 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 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]1RLR 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 this court in Foley v Post Office [2000] ICR 1283.was cited with approval by McGovern J. of the Irish 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]/CR 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 application of the "band of reasonable responses" authorities in the context of unfair dismissal was confirmed by the decision of Noonan J. in the High Court case of Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229.

The interaction between the "band of reasonable responses" and procedural issues was analysed by Browne-Wilkinson J. in Iceland Frozen Foods v Jones [1983] 1 ICR 17:

"Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Act of 1978 is as follows: (1) the starting point should always be the words of section 57(3) themselves; (2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstance of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.

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 of 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."

In J Sainsbury pic v Hitt [2003] ICR 111 the United Kingdom Court of Appeal also approved of this particular approach in the context of dismissal for misconduct. In that case, the Court of Appeal held that the Employment Tribunal had incorrectly substituted its own opinion as to what was a reasonable or adequate investigation, instead of applying the objective standard of the reasonable employer as to what was a reasonable investigation in the circumstances. The Court held that the range of reasonable responses test applied not only to the question of whether or not the suspected misconduct may have taken place but also to the reasonableness of the decision to dismiss and to the reasonableness of the investigation.

In terms of the significance of any "procedural issues", the Respondent relies on the test identified by Laffey J. in the High Court case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332 that; "the authorities ... make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee's employment and the circumstances surrounding the disciplinary action (per Barrington J. in Mooney vAn Post [1998] 4 I.R. 288 at p. 298). The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result (per Hamilton C.J. in Gallagher v The Revenue Commissioners (No. 2) [1995] 11.R. 55 at p. 76)."

The Respondent firstly notes that the requirements of fair procedures vary from case to case; there is no set formula that can be followed in each and every case. Instead, general principles have been identified over time, by reference to specific issues that arise on a case by case basis. Where it is suggested that an individual has been deprived of fair procedures, the key criterion for consideration is whether or not the procedural deficit exposed the individual to the risk of an unfair hearing or an unfair result. In Shortt, the procedural deficit in issue was the fact that the employee had been deprived of the opportunity to cross-examine his accuser (in that case, his personal assistant). The Court noted that;

"... in this case there was a large measure of consistency between the basic facts as asserted by the personal assistant and the plaintiff's account of what happened ... There was a conflict as to the demeanour of the plaintiff towards the personal assistant. The essential question is whether, given the refusal of the personal assistant to submit to being questioned at a disciplinary hearing by or on behalf of the plaintiff, the plaintiff was likely to be exposed to the risk of an unfair hearing or an unfair result.

The type of disciplinary process which was being implemented ... does not lend itself to the application of the principles of natural justice in the manner in which they would be applied if the plaintiff had been entitled to a hearing by an impartial tribunal, which was not the case.

On the specific arguments advanced by the plaintiff in this case, in my view, the plaintiff has not established that he was not afforded fair procedures by reason of the fact that there was no opportunity for him or his representative to question the personal assistant. The factual dispute which the investigation identified, in my view, did not indicate that it was necessary in the interest of fairness to afford such opportunity."

The Court concluded that; "Taking an overview of the matter, I do not think that the process involved in the disciplinary procedure was unfair, nor was it implemented in an unfair manner. Viewing the process as a whole, while not perfect, in my view it was not conducted in breach of the plaintiff's rights”

Applying the legal test described above, it is respectfully submitted that there is no basis upon which to uphold the Complainant's claim under the Unfair Dismissals Act. As stated in the Respondent's solicitors' letter of 13 November 2018 “The Claimant was dismissed following a fair and thorough process. The Respondent conducted an investigation, disciplinary hearing and an appeal hearing which the Claimant attended and was represented by his SIPTU representative throughout. At all times during the process, the Claimant was given the opportunity to speak and put questions to the various witnesses, the investigator, the disciplinary officer and the appeal officer. His comments and replies to the investigator's findings were considered by the Respondent, as was the Claimant's years of service and his disciplinary record with the Company, before the decision was taken by the Respondent to terminate his employment. The decision to dismiss was fair, reasonable and proportionate in all of the circumstances. The Respondent denies that the dismissal was unfair, that the investigation was flawed and that a second investigation was carried out by the disciplinary officer without the Claimant's knowledge or involvement."

There is simply no basis for the suggestion that he was denied an opportunity to advance his defence. On the contrary, the Complainant was afforded a full and comprehensive opportunity to raise and address any factual issues which he believed to be relevant to the charge of assault- which charge, it must be remembered, was one which he did not fundamentally deny.

Significant emphasis is also placed in the Complainant's written submission upon the suggestion that the Respondent's decision was legally compromised by the factnoted in the General Manager's determination to the effect that certain witnesses had indicated that Mr. X was being bullied in the workplace.

In doing so, the General Manager was simply recording the information provided during the course of the investigation and in those circumstances where this formed part of the background factual matrix, he was, of course, fully entitled to state that these statements were relevant to the investigation. However, as appears from both the determination of the General Manager, and the HR Manager Ireland on appeal, the decision to dismiss was not, in fact, based upon a finding of bullying. The decision to dismiss was based upon the workplace assault perpetrated upon Mr. X by the Complainant and not otherwise.

The Respondent is respectfully perplexed by the reference to what is referred to as "Schrodinger's Cat". The Complainant's reference to and apparent reliance upon this scientific experiment is fundamentally misplaced, but provides a telling insight into the regrettable approach taken to these proceedings whereby the Complainant seems to focus on irrelevant debating points, rather than the very serious assault which he perpetrated upon Mr. X.

The Complainant states that the Respondent failed to have any or any appropriate regard to the fact that the Complainant was "on his knees" at the time of the incident. The Complainant's written submission elaborates upon this stating that "this would be a bizarre position for a person intent on physical aggression to adopt".

With respect, this submission is misplaced. At no time has the Respondent made a finding that the Complainant adopted a physical position in keeping with that of a person intent on physical aggression. In making this point, the Complainant seeks to rebut an allegation which was, in truth, never made against him. Instead, the essential point upon which reliance is placed is the undisputed fact that the Complainant struck a co-worker in the face with a metal object causing a significant and serious laceration.

Criticism is also advance by the Complainant upon the evidence of Mr Y. Again, it is submitted that this criticism is misplace. As appears from Mr Y’s statement, he states that he was watching the incident closely. Due to the view of the incident which he had, he was unable to see the Complainant striking Mr. X, however, as previously noted this is not a matter which is in controversy or at issue in these proceedings. As against this, Mr Y was, on his evidence, in a good position to see whether- as alleged- Mr. X struck the Complainant with a piece of cardboard. In this regard, Mr Y states as follows:

"I didn't see (Mr. X) strike (the Complainant) and I was watching it closely."

It is respectfully submitted that the Respondent's decision makers were fully entitled to place reliance upon Mr Y’s evidence as an independent observer of the incident who candidly acknowledged the limitations of what he could and could not see. Due to the fact that the Complainant was in a position obscured by the presence of Mr. X, it was not possible to see whether Mr. X was struck on the face, however, Mr Y was in a perfectly good position to see whether Mr. X had struck the

Complainant with a piece of cardboard - something which he confirms did not happen.

The Complainant places reliance on the decision of Eagar J in Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272. It is respectfully submitted that this reliance is misplaced for two reasons. Firstly, there was no failure to permit cross-examination in this case in circumstances where the Complainant did not ask for the facility of cross-examination. As stated in the appeal determination of the Ireland HR Manager, the position was as follows: "I am satisfied that you had sufficient opportunity to raise any issues you had with the evidence provided by Mr X and the statements he provided. During the investigation, you were invited to submit a list of questions you may have of Mr. X to (the Investigator) which he undertook to put to Mr. X. You chose not to put any such questions to the Investigator (and by extension to Mr. X) and confirmed this to me during our meeting. Equally, you were asked to raise any concerns you had with the investigator's findings with the General Manager and I note that he addressed and responded to you with respect to those concerns before he made his decision."

Secondly, any assessment of the significance of the Lyons decision must be viewed in light of the fact that a diametrically opposed view in relation to the issues decided by Mr Justice Eager was arrived at by McDermott J in NM v Limerick & Clare ETB [2017] IEHC 588. Subsequently, the Court of Appeal has stated that the view expressed by Mr Justice McDermott in NM was to be preferred in the recent decision of Irish Rail v McKelvey [2018] IECA 346.

Accordingly, it is submitted that the weight to be attached to the observations in Lyons must be seen in this limited context.

It is submitted that the complaint made at paragraph 3.9 to the effect that The General Manager engaged in an unauthorised "re-investigation" does not withstand factual scrutiny. In fact, The General Manager did not engage in a fresh or further investigation as alleged. On the contrary, arising from the conflict of evidence between the parties in relation to the alleged striking by Mr. X using a piece of cardboard, The General Manager carried out a simulation based on the available witness evidence. The General Manager was fully entitled to do so in order to gain a fuller understanding of the mechanics of the alleged striking and whether such striking would, on balance, have been likely to have been visible to other staff members on the floor had it taken place. Accordingly, the criticism advanced is misplaced and further serves to illustrate a tendency on the part of the Complainant to focus on procedural debating points rather than the essential issues which gave rise to his dismissal.

Finally, the Complainant states that he was not heard at the disciplinary meeting. This complaint is not understood. The Complainant was afforded a full opportunity to speak at the disciplinary hearing, which took place on 20 August 2018, followed by an opportunity to review the investigation report and revert with any relevant comments. The Complainant did so through his SIPTU representative on 22 August 2018 and furthermore, the Complainant confirmed during the course of the appeal hearing before the Ireland HR Manager that he did not have any questions to put to Mr. X arising from the preceding investigation or the process conducted by The General Manager.

In all of these circumstances, it is respectfully submitted that the process adopted was one which more than adequately safeguarded the Complainant's procedural entitlements and that the overall purpose and effect of the process adopted was one which could not possibly be described as procedurally unfair.

TheComplainant'sbehaviourwasunacceptableandconstitutedgrossmisconduct.

The Respondent acted fairly and proportionately in arriving at the decision that the assault perpetrated by the Complainant was a very serious one which was not excused by any of the surrounding circumstances relied upon.

Consequently, the Complainant's claim under the Unfair Dismissals Act 1977 must fail.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Dated:   06/08/2019

Workplace Relations Commission Adjudication Officer: Peter O'Brien

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