Complainant

Respondent

Anonymised Parties

A Worker

Medical Manufacturing Plant

Representatives

Vernon Hegarty Workers' Rights Centre

Terry MacNamara 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-00011172-001

05/05/2017

The claimant commenced employment in July 2014 as a general operative with the respondent and was dismissed for gross misconduct on the 20th.Dec. 2016.It was submitted that an incident involving the claimant and another employee took place on the afternoon of the 21st.Nov. 2016 following which an allegation of a physical assault on 2 colleagues by the claimant was made.

It was submitted that the claimant and a colleague were suspended on full pay pending an investigation on the 22nd.Nov. and the respondent’s representative charted the chronology of the ensuing disciplinary process. Copies of the minutes of the investigation meeting was submitted in evidence – the claimant denied that he had been the instigator of an aggressive incident and asserted that he had been assaulted by his colleague Mr.C. It was submitted that the claimant denied that he had assaulted Mr. E on the same occasion. It was submitted that Mr.C gave evidence that the claimant had verbally abused him and caught him around the neck/throat, jostling him before they were separated. It was submitted that Mr.C further indicated that the claimant had assaulted Mr.E on another occasion .

The production manager Mr.O C interviewed 13 witnesses and a document of their statements was circulated to the claimant and Mr.C. The claimant was advised of a disciplinary hearing on the 16th.Dec.2016 and was invited to bring representation and informed that dismissal was a possible outcome of the meeting. It was submitted that details of the investigation report were put to the claimant at the disciplinary meeting and that most of the witnesses interviewed indicated that the claimant had initiated the altercation and was the main instigator of the conflict. The claimant denied that he was the instigator and argued that Mr.C was the main aggressor. It was submitted that the claimant advised at the meeting that he had been diagnosed with an illness, had a mortgage and family to support and that he understood how damning the issue was. The meeting adjourned to consider the matter and on reconvening the claimant was advised that his employment would be terminated owing to gross misconduct. The claimant appealed the decision and contrary to the company policy which did not recognise trade unions he was represented by a SIPTU official at the appeal hearing. In the event the appeal was not upheld.

It was submitted that the respondent had afforded the claimant all of his rights under natural justice and company procedures and that the claimant was familiar with the procedures and what constituted serious misconduct. It was submitted that the claimant had downplayed the level of seriousness and aggression involved in the incident and that he denied that he was the instigator.

It was submitted that the claimant had failed to identify how the respondent had failed to adhere to their procedures. It was argued that there were compelling and plausible explanations for the delay in concluding the disciplinary process.

It was submitted that the allegation of bias by the claimant was spurious – the investigator was a recent recruit and knew neither parties and there was no basis for alleging that the junior member of the investigation team (Ms.B) showed bias in favour of Mr.C as they had previously been colleagues.

It was submitted that the case for mitigation had been fully considered but the respondent had no choice but to dismiss. There was no basis for the allegation of a prejudgement of guilt by the respondent.

The provisions of UD854/92 and UD 1379/2004 were invoked in support of the decision to dismiss.

It was submitted that alternative sanctions were considered but they were not reasonable given the serious level of aggression shown by the claimant.

In direct evidence the production manager confirmed that he had not received a complaint – he said he was told there was an incident and we want an investigation. He confirmed that the parties were given the witness statements before the 2nd.hearing on the 2nd.Dec.16.Under cross examination about the 11 days that elapsed while the opinion of others was solicited , the manager asserted that the brief was to find out what occurred and was questioned as to why the principals were not first approached to establish if an investigation was necessary. He disagreed with the claimant’s representative’s contention that the reliance on unsigned unidentified statements might be unfair. It was suggested that witnesses were afraid and that further allegations had been made against the claimant following his dismissal.it was put to him that the witness statements were not statements but his distillation of what was said. The manager asserted that he was trying to be fair and balanced. It was argued by the claimant’s representative that the manager’s conclusions were based on events that he had constructed from witness statements. He did not recall an issue being raised about potential bias of Ms.B.

Ms.MP confirmed that while no formal complaint had been made to her about the incident, she had a duty of care to pursue the incident at issue. She stated that the claimant had been found by the majority of witnesses to be the aggressor on the balance of probabilities and “we took the decision to dismiss”. She stated that the claimant acknowledged his behaviour was inappropriate and that she had to do what she felt was appropriate. She confirmed that alternatives to dismissal had been considered. She did not accept the allegation of bias against Ms.B – she asserted she was there to establish the facts.Ms.MP asserted that the claimant was fully aware of the allegations against him .She advanced that it was clear from the report who came from what shift .She confirmed that she did consider the fact that Mr.C came back on a number of occasions and considered the concerns raised by the claimant. She stated the claimant’s dismissal was based on his misconduct in response to the proposition by the claimant’s representative that Mr.C was more likely to be the aggressor because he came back a number of times. She was aware of the claimant’s diagnosis and the decision to dismiss was not an easy one.

Mr.C2 gave evidence of conducting the appeal – he stated it was an exercise in listening and where he needed clarity he reverted to a number of people- he stated that he had no misgivings about unfairness in the process   or about people giving evidence without having to substantiate it – he did not accept the claimant’s representatives proposition that it was a license to say what they liked .He stated that violence was totally forbidden in the workplace and no good reason was presented to reverse the decision to dismiss.

In summing up the respondent’s representative , it was submitted that the respondent had met the test for natural justice set out in Mooney v An Post , he knew the charges against him, had an opportunity to rebut them .He was fully aware of the charges as set out in Frizelle v New Ross Credit Union and the decision to dismiss was proportionate for an aggressive altercation. It had been determined that a complaint was not a prerequisite for an investigation, that the respondent had acted within reason and that issues now surfacing at the hearing had not been previously raised.

It was submitted on behalf of the claimant that he had a blemish free record with the respondent prior to the incident at issue. It was advanced that when the incident took place during shift changeover, there were several witnesses, primarily those coming off shift with Mr.C.

It was asserted that “no statements were taken from the witnesses that they might affirm by signing and dating – the investigation simply wrote reports in summary of what each had supposedly said at interview that was deemed relevant by those conducting the interview. When the claimant had his first opportunity to give his account of the incident, he was not given any of the witness statements already in the possession of the respondent---a full 7 days after they had been taken”.

It was submitted that at the second investigation meeting the claimant outlined his concerns about the investigation , about potential bias by Ms.B, about the majority of the witnesses being working colleagues of Mr.C and on the same shift .The claimant asserted that the first question he was asked was if he wanted to change his statement; he had not received MR.C’s statement .It was asserted that the confidentiality of the investigation had been breached , the time taken to conduct the investigation facilitated collusion ; there were no witness statements   but “ merely reports by the Interviewing Panel of what witnesses supposedly said- a version of events constructed-“

It was contended that a second allegation of striking another colleague was introduced with little evidential basis.

The report of the investigation team had found that because the majority of witnesses suggest that the claimant initiated the altercation, that he must have done so. It was submitted that no consideration was given to the fact that the divergence in evidence reflected precisely the composition of witnesses between the claimant’s shift and Mr.C’s.

It was submitted that the claimant was unfairly dismissed – that the respondent had acted unreasonably by failing to conduct a fair and impartial investigation – it was suggested that the investigation was tainted from the outset .The respondent had failed to give the claimant an opportunity to know the precise statements made against him and by whom to enable him to challenge the actual submissions and failed to give statements of all witnesses at the first investigation meeting on the 2nd.Dec. 2016.It was submitted that the respondent had failed to test the claimant’s evidence in following up with witnesses and that the respondent had failed to call other witnesses who were present and could corroborate the claimant’s evidence.

It was submitted that “rather than initiate an investigation by advising the 2 employees against whom an allegation had been raised of what exactly had been referred to them , the employer chose to solicit view of others who were present and to ‘construct’ a narrative from their responses as filtered through the perceptions of the Investigating Panel” .It was contended that the narrative became an established description of what happened before the claimant had a chance to submit his evidence. It was argued that in weighting the evidence through percentages, the respondent failed to apply the same methodology with respect to the allegation that the claimant slapped another colleague. The claimant had no way of knowing what narrative had been conveyed to management. It was submitted that the decision to dismiss was forged at investigation stage – locking the process into only one outcome – dismissal. It was contended that the employer had failed to properly review the claimant’s concerns – the second allegation was left in as being accepted without an evidential basis on the balance of probability. It was contended that the sanction imposed was completely disproportionate to the offence.

The claimant clarified the incident referred to by the respondent when the claimant visited the factory and vehemently denied any impropriety on his part .He set out his account of the altercation with Mr.C and asserted that when he jokingly spoke to Mr.C , Mr. C pushed him ,verbally abused him and he pushed Mr.C and described the ensuing exchanges before others intervened .He was adamant that he was not the aggressor. He complained that 2 witnesses had been excluded from the interview process. Under cross examination, the claimant could not say if he had queried the terms of reference of the investigation. He could not explain why 75% of those interviewed had identified him as the aggressor. It was put to the claimant that none of the records indicate that he had protested against the inclusion of Ms.B on the Investigation Team .He insisted he raised it at the investigation stage. It was put to him that these concerns about the process were only raised at the appeal stage and that there was no reference to his complaints about witnesses being excluded from the interviews. The claimant stated that he was seeking reinstatement and was available to work from next week.

In summing up on behalf of the claimant, it was contended that the test for natural justice which had evolved over the years had not been met; where someone is in danger of losing a job, they were entitled to copies of evidence and the right to cross examine. The evidence could not be tested as the origin of the witness accounts was not disclosed – this was evidence without responsibility and the claimant was denied an opportunity to challenge the evidence. It was submitted that balance and fairness cannot be skewed.

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties. I acknowledge the representations of the respondent’s representative in relation to the fact that many of the challenges to the dismissal were first raised at the WRC hearing and not during the disciplinary or appeals process. However, the Act requires that I determine if the entirety of the process was underpinned by fairness and natural justice. In this regard I found the arguments made by the claimant’s representative that the process was flawed by virtue of the narrative constructed from the anonymous statements of the claimant’s co- workers to be very compelling. This construction deprived the claimant of an opportunity to challenge such evidence and consequently I find that the dismissal was procedurally unfair and accordingly I am upholding the complaint of unfair dismissal. However, I am obliged to take account of the claimant’s acknowledged participation in the fracas and to that end find that he contributed significantly to his own dismissal. I am taking this into account as well as the confirmation from the claimant that he only became available for work as a result of his illness on Monday 26th Feb 2018 in awarding €8,500 compensation.