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-00012968-001

04/08/2017

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

CA-00012968-002

04/08/2017

The Complainant commenced working with the company on 1st March 2009 as a Sales Assistant and General Operative. In 2016 the Complainant commenced personal injury proceedings against the company which were settled.

The Complainant says that the company were resentful of him having issued Court proceedings for his personal injury and hold a grudge against him. The proceedings related to the unsafe system of work in the company where the Complainant was obliged to step over parts, and in doing so he was injured.

The Complainant says that on 12th July 2017 a colleague came to speak to him while standing on or stepping over parts, resulting in parts crashing on the ground. The Managing Director enquired as to the reason for the noise and the Complainant informed him that his colleague was standing on the parts. Subsequently this was denied by the employee. The Complainant says his colleague began shouting and screaming at him in an extremely intimidating manner when the Managing Director was present. The Complainant responded in kind and told him to “get out of his face” and used expletives. He says his colleague taunted him and said “Go on hit me. You’ll lose your job” to which he replied “Of course I’m not going to hit you. That’s what you want me to do. Do you think I’m stupid?”. Some time later the Complainant said he was not feeling well after the incident, and left work. The Complainant denies assaulting or threatening the employee.

The Complainant was requested to attend an investigation meeting on 14th July 2017 by the Managing Director who witnessed the incident. The letter of invitation stated “It is my understanding that you demonstrated abusive and threatening behaviour towards..[employee]”. The Complainant’s representatives say the investigation is a sham. The investigator is a witness and had already formed the conclusion that the Complainant demonstrated abusive and threatening behaviour towards his colleague. This evidences prejudgement and bias. The HR representative of the company is the Managing Director’s wife who witnessed the incident. The Complainant was never given a copy of the witness statements so that he could challenge the evidence against him.

On 16th July 2017 the Managing Director, his wife and a Director (also a brother) decided to dismiss the Complainant. This was the disciplinary stage of the investigation but the Complainant was not invited to attend. On 18th July 2017 a further meeting took place when the Complainant was informed that he was being dismissed by the Managing Director. The Complainant was advised of a right of appeal to another brother of the Managing Director. The Complainant says the process was manifestly unfair, was biased and lacked objectivity. The Appeal was unsuccessful. The principles of natural and constitutional justice were clearly and fragrantly breached so the dismissal could not be fair. The Complainant did not initiate the confrontation which led to the allegation of misconduct. He met fire with fire but in a manner that was essentially proportionate, despite his use of vulgar language. His dismissal was unfair and he seeks compensation for his dismissal.

The Respondent is a small family run company. The Complainant was employed since 1st March 2009.

The Complainant received a first written warning on 17th January 2017 for disrespect, aggressive and offensive behaviour to the HR representative. The Complainant did not recognise or agree the HR representative’s authority and a complaint was made to management. The HR representative is married to the Managing Director. The Complainant had issued personal injury proceedings in 2016. The Respondent was not aware if they were settled as the insurance company was dealing with the case.

An incident occurred on 12th July 2017 when the Managing Director heard a groan and asked the Complainant what occurred. The Complainant said his colleague was walking on parts. The Managing Director asked the employee what occurred. He denied this and said he caught his elbow on a part which fell off the shelf. This version of events was disputed by the Complainant. All 3 went to where the incident occurred, and the employee continued to dispute the Complainant’s version and told him to mind his own business. The Managing Director said there were no broken parts on the floor and the aisle was clean. The Complainant began shouting and threatening the employee saying “ I’ll punch the head off you, I’ll break you up you little bitch”. He repeated this and leaned with his fists. The employee said “hit me go ahead you will lose your job”. The Managing Director had to step in between them as it looked like the Complainant would assault the other colleague.

The Complainant then threatened the employee that he would “put him in a box”. The Managing Director then intervened and sent the employee downstairs. A short time later the Complainant came to the Managing Director to say he was not feeling well and went home.

The Complainant was notified by letter from the Managing Director that he witnessed some of the incident that occurred on 12th July 2017, and the Complainant demonstrated abusive and threatening behaviour to his colleague. The Complainant was suspended with pay and was informed disciplinary proceedings were being initiated. He was requested to attend an investigation meeting on 14th July 2017 with the Managing Director and HR representative. The incident was reported by the company to the Gardai. The Complainant was advised of the seriousness of the incident and that this could have future implications for his employment.

An investigation meeting was held to establish the Complainant’s version of what occurred on 12th July 2017. The Complainant said the employee was standing on parts and said the employee started shouting “it is none of your effing business very loudly”. He said the employee started screaming for him to hit him, and spoke in his own language. The Complainant said he did not remember what he said to the employee, and refused to sign his statement. The Managing Director said he would consider and reflect on the statements made by the witnesses involved.

On 16th July 2017, the Managing Director, the HR representative and another brother met to consider the statements and incident that occurred. His brother had not been involved in the company for years. There was conflicting information in the Complainant’s statement. The Complainant failed to admit that he threatened his colleague with physical harm. None of the other witness agreed that the employee spoke in his own language. They felt it was an untenable situation. They concluded there was a serious breach of company policy and their code of conduct by the Complainant amounting to abusive and threatening behaviour and threatening an employee with a violent act in a most malicious manner. They decided the Complainant should be dismissed as the behaviour was gross misconduct. Notice was not paid.

The Complainant was notified of the decision and was given a right of appeal to another Company Director. The Complainant said that the Director and employee were colluding and fabricating evidence, but no evidence was found. The Appeal was heard and was unsuccessful.

The Company is a small family run business and they carried out the process as fairly as possible.

I have heard the parties evidence at hearings on 14th February 2018 and 16th August 2018 and considered the written submissions of the Parties.

The Complainant was employed with the Respondent from 1st March 2009 to 18th July 2017 as a Parts Sale Assistant. He was dismissed for gross misconduct for threatening and abusive behaviour, and threatening an employee with a violent act in a most malicious manner following an incident with a colleague which occurred on 12th July 2017.

Under S6 (1) of the Unfair Dismissals Acts 1977-2015 the dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances, there were substantial grounds justifying the dismissal. The onus lies upon an employer to justify that the dismissal is fair.

Section 6 (4) of the Act provides that the dismissal of an employee shall be deemed not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    The capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)    The conduct of the employee,

(c)     The redundancy of the employee, and

(d)    The employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Regard may be had by the Adjudication Officer of the reasonableness of the employers conduct in relation to the dismissal, together with the extent of compliance or non-compliance with S14(1) or any code of practice.

The Complainant was dismissed for gross misconduct following the incident on 12th July 2017. The exact circumstances are a matter of dispute between the Complainant and his co-worker. The Complainant alleges that he was provoked, as does his co-worker, however it is accepted that the co-worker said “Go on hit me. You will lose your job”. The Complainant who admits foul language, denies making a serious threat against his co-worker to “put him in a box”. A physical assault did not occur and the Managing Director separated the 2 co-workers.

The Disciplinary Procedure of the company provides for an Investigation Procedure, on conclusion of which the employee will be informed of the findings and outcome. The Managing Director who witnessed the incident was involved in the investigation into the incident. There were statements obtained from witnesses to the incident which were not given to the Complainant in breach of the Disciplinary Procedure. A Disciplinary meeting was subsequently held in the absence of the Complainant who did not have any opportunity to respond nor address the witness statements, prior to a decision being made to dismiss. The Managing Director was also a decision maker in the disciplinary process which was inappropriate. Serious breaches of fair procedures and the principle that a party cannot be a Judge in its own cause took place during the investigation and disciplinary process. There were breaches of Statutory Instrument 146/2000. The Respondent is a small family run company but nonetheless it must comply with fair procedures, particularly where dismissal is being considered.

The incident though serious, did not amount to gross misconduct, and the sanction of dismissal was disproportionate. The Complainant had long length of service. There was no evidence of disciplinary action taken against the co-worker involved. I find the Complainant was unfairly dismissed on procedural grounds, but there is no doubt he substantially contributed to his dismissal.

I find the Complainant was unfairly dismissed, compensation is the most appropriate remedy. It is just and equitable that the Complainant be paid 11,908 euro compensation for his financial loss which is adjusted to take into account his contribution, and I direct this is paid by the Respondent.

Following my decision in CA-00012968-001 above, I find the complaint of breach of S11 of the Minimum Notice & terms of Employment Act 1973 is well founded and direct payment of 4 weeks wages of 1,832.00 euro to the Complainant.

Misconduct, breach of fair procedures, family run company,