ADJ-00017060

Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Discount Retailer

Representatives

Claire Bruton, BL

Ursula Sherlock, 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-00022119-001

24/09/2018

The respondent is a British discount retailer with over 50 stores in Ireland.  The complainant worked as a sales assistant in a Dublin store.  He started in April 2017 and he had a contract for between eight and sixteen hours a week.  He was dismissed on June 29^th 2018 following an investigation into a complaint by the duty manager (“DM”) that, on June 18^th, the complainant slapped him on the face to get his attention.

Chronology Leading to the Complainant’s Dismissal

On June 21^st 2018, DM reported to his store manager that three days earlier, the complainant slapped his face twice to ask him if the shop had face paint for a customer. 

An investigation meeting took place on June 23^rd, at which the complainant was shown CCTV footage of the incident.  He said that he tried to get DM’s attention by tickling his chin, and that he did not slap him, as DM alleged.  At the end of the meeting, the complainant was suspended on pay, pending a decision about how to proceed.

On June 25^th, the complainant was requested to attend a disciplinary meeting to answer allegations of:

§  Gross breach of the company’s behaviour and conduct policy where you raised your hand to a colleague which caused offence and resulted in a complaint from the colleague;

§  Inappropriate behaviour on the shop floor in front of a customer;

§  Failure to uphold company values and to respect each other.

A disciplinary meeting was held on June 29^th and was chaired by a manager of a different store.  The complainant decided not to be represented and he explained the purpose of “tickling” DM to get his attention.  He said that he did it without thinking, but he accepted that it was not appropriate and was disrespectful to DM and the customer.  Following a break in the meeting, the store manager concluded that the complainant had raised his hand to DM and that his behaviour was in conflict with the company’s values and brought the company into disrepute.  The store manager decided to dismiss the complainant with immediate effect.

A letter dated July 4^th sets out the precise reasons for the complainant’s dismissal:

§  You admitted to raising your hand to another colleague and provided no reasonable mitigation for your actions.

§  I find your actions to be wholly unacceptable and your actions had potential to bring the Company into disrepute.

§  Based on your own admittance and CCTV footage, I find your behaviour has been contrary to the values of the Company and you have breached the Company’s behaviour and conduct policy.

On August 8^th 2018, following a meeting that took place on July 26^th at which the complainant appealed against his dismissal, the termination of his employment on the grounds of “wholly unacceptable” conduct was upheld.

The Reason for the Dismissal of the Complainant

In the respondent’s submission, they outlined their position regarding the incident that occurred on June 18^th 2018.  They said that what occurred was upsetting to DM, particularly as it took place in front of a customer.  The complainant’s actions amounted to a breach of trust between the complainant and his employer.  Having been informed by DM of the incident, the respondent owed him a duty of care as he had been mistreated by the complainant and was humiliated and extremely upset.

A copy of the staff handbook was submitted in the respondent’s book of papers at the hearing.  Referring to the company’s values of “Putting Customers First” and “Respect Each Other,” the handbook states,

“…we do not tolerate violence against customers or colleagues.  Colleagues who find themselves in difficult situations involving customers should contact their manager for support immediately.  Equally, colleagues who are involved in violence with another colleague will be subject to disciplinary action, which may result in dismissal for gross misconduct.”

The company’s Behaviour and Conduct Policy which was provided in the respondent’s submission provides that gross misconduct includes,

“Behaving in a threatening or intimidating manner or engaging in physical violence with another.”

It is the respondent’s case that the complainant’s characterisation of his actions towards DM on June 18^th 2018 as “tickling” is not credible.  The conclusion of the manager who heard the appeal was that the complainant raised his hand towards DM in an intimidating manner and that he did this in front of a customer.  Even if the complainant had tickled DM, this conduct is itself humiliating, and could be potentially considered as gross misconduct. 

The Process Followed in Dismissing the Complainant

It is the respondent’s case that the process that resulted in the complainant’s dismissal was in line with the disciplinary procedure in the complainant’s contract of employment and in the employee handbook.  The complainant decided to attend the disciplinary meeting on June 29^th without any representation, but he said that he got legal advice before the appeal meeting on July 26^th.

Legal Precedents

Several previous cases at the Employment Appeals Tribunal (EAT), the Labour Court and the WRC were submitted in support of the reasonableness of the respondent’s decision to dismiss the complainant:

Hevey v Foley Packaging, [2005] 6 JIEC 2101

Mr Hevey was dismissed for assaulting a colleague at work.  While the chairman of the EAT found that there were procedural deficiencies in the manner in which Foley Packaging reached the conclusion to dismiss Mr Hevey, he found that the “overall handling of the matter demonstrated the required level of due regard to overall staff safety.”

A Painter v an Employer, ADK-00000136

The employee in this case was dismissed following three physical fights on one day.  In his decision, the adjudicator, Mr Hayes found that,

“The nature of the allegations was of such serious import as to go to the heart of the employment relationship and the conclusion reached based on the balance of probability and the Claimant’s evidence in that respect was also reasonable.”

Audrey Burtchaell v Premier Recruitment International Limited, UD 1290/2002   

Ms Burtchaell was dismissed when it was discovered that she had sent derogatory e-mails about her managers and colleagues to various employees.  While the circumstances of this case are different to the complaint under consideration here, the chairman concluded that the conduct of Ms Burtchaell was such that,

“…the trust and confidence which has long been established by this Tribunal to be fundamental to proper working conditions and is necessary for the correct administration of any reputable business, to be virtually destroyed to such an extent that the claimant could no longer be retained by the respondent.”  

Evidence of “DM”

In his evidence at the hearing, DM said that he was standing behind the cash area counting stock when he heard the complainant saying, “hey, hey you,” and then “the complainant slapped my face twice, like two taps.”  He said that what happened could not be described as “a tickle.”  When he was asked by Ms McNamara why he didn’t report what happened immediately, he said that he just didn’t react, and that he was afraid.

In cross-examining by Ms Bruton, DM was asked about his relationship with the complainant and he said that the complainant was “too aggressive in his words.”  It appears that the complainant made a complaint about DM the day before the incident.  In response to Ms Bruton’s questions about “two taps” on his face, DM said that it wasn’t a tap, but a slap and that there was a sound.  He said that he finished his shift for the next two hours without saying anything to anyone about what happened.  He said that he just wanted to go home.  He said that he told his partner what had happened and that his partner said that this wasn’t acceptable and that he should tell his manager.  The next day, he said that he told his manager, and then, on the 21^st, he made a formal complaint.

Ms Bruton asked DM to look again at the CCTV footage and, after reviewing it, she suggested to DM that the complainant was simply trying to get his attention.  There was no reason why the complainant would slap DM in this circumstance.

Evidence of the Complainant

In his direct evidence, the complainant said that, while DM was a duty manger and a work colleague, he was not friendly with him.  He said that DM was his manager and that he “never said a bad word to him.”  The day before the incident, the complainant said that DM wasn’t doing his work and was sitting in the office.  On the 18^th, he said that DM was day-dreaming and he called him to ask him about face paint for a customer.  He said that he called him twice and got no response and then he tickled him on the chin.  After that, the complainant said that he got on with his work.

Ms Bruton asked the complainant about the investigation meeting that occurred on June 23^rd.  He said that he thought it was “just a chat” and that he didn’t bring anyone with him.  At the disciplinary meeting on June 29^th, he had no idea that he would be dismissed.  He said that if he had thought this would be the outcome, he would have brought someone to represent him.

When he was asked by Ms Bruton what was said about the incident on at the disciplinary meeting, the complainant said that there was no reference to a “slap.”  The notes of this meeting show that the manager asked the complainant why he “raised his hand” to DM.   

In cross-examining by Ms Sherlock for the respondent, the complainant agreed that the letter inviting him to the disciplinary meeting alerted him to the possibility that he would be dismissed.  The complainant confirmed that he signed the notes of the investigation meeting and that he refused to sign the notes of the disciplinary meeting, saying he wanted to get legal advice.   

The Reason the Dismissal of the Complainant was Unfair

Setting out the reasons why the dismissal of the complainant was unfair, Ms Bruton said that DM’s claim that he was slapped is not credible and that the CCTV evidence is inconclusive.  In his own description of what occurred, DM described the contact of the complainant’s hand on his face as “like a tap.”  She argued that if DM had been slapped he would have gone to the Gardaí and he might have also gone to his doctor, but he did neither.

Ms Bruton said that the outcome of the disciplinary process was pre-ordained, and that, based on what occurred on June 18^th between the complainant and DM, the treatment of the complainant’s behaviour as gross misconduct was unreasonable, resulting in a sanction that was entirely disproportionate. 

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. 

Section 6(4)(b) of the Act provides that;

“…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 …the conduct of the employee.”

The complainant’s letter of dismissal shows that he was dismissed for raising his hand to another colleague, bringing the reputation of the company into disrepute and for behaviour considered to be contrary to the values of the company.  The manager who made the decision to dismiss the complainant concluded that, because of the seriousness of his conduct, he was to be dismissed immediately.

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

In her submission at the hearing, Ms Sherlock referred to the case of Looney & Co Limited v Looney UD 843/1984, which established that it is not for me, as the adjudicator, to determine the guilt or innocence of the complainant.  My job is to determine if it was reasonable for the respondent to conclude that the complainant raised his hand to his duty manager and, arising from this conclusion, was the decision to dismiss him proportionate to the seriousness of his conduct?

Legal Precedents Submitted for Consideration

I have considered the precedents submitted by Ms Sherlock in support of the respondent’s decision to dismiss the complainant.  In the Hevey v Foley Packaging case, Mr Hevey was dismissed following an assault on a colleague.  In the adjudication hearing in the case of a Painter v an Employer, there was clear evidence that the Painter was involved in three separate physical fights.  In Audrey Burtchaell v Premier Recruitment, Ms Burtchaell sent e-mails to colleagues that showed that she had extremely derogatory opinions about the managers in her company.  The complainant’s conduct on the day in question was derogatory and disrespectful, but it was fleeting and done without thinking.

Findings

The recording of the incident on June 18^th was played before me at the hearing.  I observed the complainant making swift contact in the form of two quick taps on DM’s chin.  The general interpretation of the word “slap” is of an aggressive gesture intended to hurt.  It is my view that the complainant’s action was not aggressive but that it was disrespectful, offensive and humiliating.  From my observation of the incident on the CCTV recording, the complainant’s description of what he did as a “tickle” is not credible.

On June 21^st 2018, DM reported that that the complainant “slapped” him.  He was consistent in this interpretation in his evidence at the hearing of this complaint.  The note of the initial investigation meeting shows that the complainant was confronted by his store manager with DM’s allegation that he slapped him.  At the disciplinary meeting that followed, the second store manager described the complainant’s action as “raising his hand.”  It is apparent therefore, that the manager who hosted the disciplinary meeting considered that the complainant’s action was something less pugnacious than a slap.  In her submission at the hearing, Ms Sherlock placed some emphasis on the need for trust in the employment relationship, and she referred to the complainant’s conduct as “fundamentally at odds with a core company value,” “an act of serious misconduct” and “a breach of trust.”  However, the letter of dismissal issued to the complainant on June 29^th 2018 makes no mention of a breach of trust and it contains no reference to misconduct, gross or otherwise.

The letter of dismissal is clear; the complainant was dismissed for raising his hand to his colleague, behaviour that was considered to be “wholly unacceptable” contrary to the company’s values and which could have impacted on its reputation.  He was summarily dismissed without notice, a course of action generally reserved for findings of gross misconduct.  In the 1978 EAT case of Lennon V Bredin, M160/1978, the chairman, Mr Gleeson, described conduct warranting summary dismissal as,

“…very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category.”

(See page 315 of “Unfair Dismissal, Cases and Commentary” by Declan Madden and Anthony Kerr, published by IBEC, 1996).

The respondent made no allegation that DM was assaulted, and from the evidence of the CCTV footage, it was clear to me that the complainant’s conduct was not violent.  I wish to reiterate that when he tried to get DM’s attention, using the term “hey, hey you” and when he tapped him on the chin, I consider the complainant’s conduct to have been offensive, disrespectful and humiliating.  The disciplinary procedure is intended to be progressive and to give an employee whose behaviour is not acceptable an opportunity to change, so that dismissal can be avoided.  It is my view that the complainant should have been issued with a final written warning, so that he could reflect seriously on his conduct and so that he could be given a chance to demonstrate that he could behave respectfully and in line with the company’s values.

Having reached this conclusion, I find that the dismissal of the complainant was disproportionate and unfair.

Was the Process Fair?

At the hearing of this complaint, Ms Bruton submitted that the complainant got no notice of the investigation meeting held on June 23^rd, and that it was referred to by the store manager as “a chat.”  At the meeting, he was “confronted” with the CCTV footage of the incident on June 18^th.  Ms Bruton argued that the decision to suspend the complainant at the end of this meeting showed that the incident was being treated as gross misconduct and that the outcome was pre-ordained.

It appears that the complainant arrived for work on June 23^rd and was informed then that he was required to attend a meeting to discuss what happened on the 18^th.  The employee handbook provides plenty of important information to employees in a user-friendly tone.  The disciplinary procedure has a heading titled, “Investigation:”

“An investigation is simply gathering the facts to be able to decide on next steps.  It can involve an informal or formal investigation meeting, but this is not necessary in every case, depending on the issues that we’re considering.  It could simply be a collation of information and evidence, but we’ll generally hold an informal investigation discussion with you to get your provisional response to our concerns.”

An informal approach might be appropriate at this stage where the conduct being investigated is not so serious that it may result in dismissal.  I find however that, in the circumstances where DM complained that he was slapped on the face, a more formal approach was required and the complainant should have been notified of this meeting in advance, the allegation against him should have been clearly set out and he should have been given an adequate chance to consider if he wanted to be represented.

I find also that the decision to suspend the complainant, based on DM’s complaint and the evidence of the CCTV footage, was disproportionate and unnecessary.

Conclusion

For the reasons set out in this section, I find the sanction of dismissal was too severe.  I also find that some aspects of the process that resulted in the complainant’s dismissal were flawed.  In conclusion therefore, I find that this was an unfair dismissal.

After he was dismissed on June 29^th 2018, the complainant said that he looked for another job, but he couldn’t remember where he looked.  He started a new job on October 18^th 2018, on a higher salary than he had with the respondent.  It appears therefore, that he was at a loss of earnings for approximately 14 weeks.

The complainant worked part-time for the respondent and his weekly pay was €206.64.  Taking account of his own contribution to his dismissal, I decide that the respondent is to pay him compensation of €2,000, equivalent to approximately 10 week’s pay.  As this is an award of compensation in the form of loss of earnings, it is subject to the normal statutory deductions.

Unfair dismissal, disproportionate sanction