Complainant

Respondent

Anonymised Parties

Production Operative

Food Production Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00022102-001

24/09/2018

The complainant commenced employment with the respondent on 29 May 2017 as an apprentice boner working on a production line. He was employed on a full-time, fixed-term basis earning €9.98 per hour. On 20 September 2017 the complainant was involved in an altercation with two other employees. Following an investigation and disciplinary process the complainant was dismissed.

The complainant, during the course of his employment, was the subject of hurtful and insensitive verbal remarks by some fellow employees.

On 20 September 2017, whilst on a short break, one of the employees made a belittling remark to him about his weight. When the complainant responded verbally the employee struck him. The complainant pushed him away and was struck again.

The complainant walked away and resumed work. The complainant was later called to an investigation meeting and suspended with pay.

Following a number of meetings the complainant was dismissed for gross misconduct.

The complainant simply defended himself from an assault by a person who was bullying him and was not guilty of gross misconduct.

The complainant was not unfairly dismissed.

There was substantive participation by the complainant in an altercation in the workplace.

The respondent has a zero tolerance policy as regards this type of behaviour.

The complainant was dismissed following a fair process in line with the Code of Practice and with full and fair application of the rules of natural justice.

The complainant was afforded the right of appeal but failed to avail of it.

The incident at the heart of this matter took place during a 5-minute break for production workers in the boning hall on 20 September 2017. One of the employees made a remark to the complainant about his weight which the complainant found offensive. The complainant responded verbally and told the other employee to “F… off back to Poland” (the employee was not actually from Poland). The employee made further derogatory remarks about the complainant’s weight and the complainant then made an offensive remark about the employee’s wife. The employee at that stage physically struck the complainant. The actual incident then ended with the participants returning to their production duties. Several witnesses could see that the complainant was visibly upset by what had occurred. It would also appear that gestures were made in the direction of the complainant indicating that the matter was not finished. At the end of the shift the employee concerned and some of his colleagues gathered around the complainant but other workers intervened and escorted the complainant to the clock station so that nothing further happened.

The complainant and two other members of staff were then called in by management and statements regarding the incident were requested. All three were suspended with pay pending an investigation. One of the other workers resigned at that stage.   An investigation meeting took place on 25 September at which the complainant was supplied with statements taken from witnesses. The disciplinary hearing took place on 29 September conducted by the Production Stream Manager and the HR Manager. The complainant was advised of his right of representation on both occasions but declined.

The complainant attended the disciplinary outcome meeting and again declined representation. The decision was that the complainant was guilty of unacceptable behaviour. The complainant was advised that his contract would not be renewed but would finish with immediate effect. He was also told about his right of appeal.

The complainant wrote a letter appealing the decision. In the letter the complainant stated that because of nerves and a lack of understanding he felt that he had not represented himself well at the disciplinary hearing. Mention was also made about bullying. The respondent wrote to the complainant with arrangements for the meeting to take place on 16 October 2017. This meeting had to be postponed due to adverse weather conditions causing the closure of the workplace. Another letter was sent re-arranging the meeting for 23 October. The complainant did not attend this meeting nor was there any communication from him in this regard. The respondent sent a further letter the following day in which it was noted that the complainant had not attended the re-scheduled meeting. That letter went on to state that it was assumed therefore that the complainant did not wish to proceed with the appeal but that if clarification was required the complainant could contact the office. No contact was made by the complaint in this regard.

I note that in his submission and in his evidence at the hearing the complainant made reference to being the victim of ongoing bullying and that the actions of the particular employee on 20 September was a continuation of this behaviour. The respondent stated in evidence that they had two designated members of staff in the area that the complainant worked who were trained to deal with dignity at work issues but that the complainant had not spoken to them about being harassed / bullied. These staff had not witnessed the incident. The complainant did mention during the investigation interview that the situation had been ongoing for 3 days prior to the incident but did not make any reference to being bullied on an ongoing basis. It is only in his letter appealing the dismissal that the complainant raises this as an issue contributing to his actions on 20 September. It is understandable therefore that the respondent did not consider this factor when deciding the sanction to be applied to the complainant.

I do believe, however, that the question of who instigated the incident was a matter that deserved consideration. In reviewing the witness’ statements it is clear to me that the other employee started the altercation and that his remarks were designed to provoke the complainant who was a young man with obvious sensitivities about his weight.   The provocation succeeded and the complainant retaliated with remarks that were racist as regards the other employee. In a further exchange the complainant made a derogatory remark about the employee’s wife which resulted in the employee physically striking him.

The respondent, as part of their defence, made the point that workers in the boning section obviously are in possession of sharp knives and that for that reason they have a zero tolerance policy as regards misconduct affecting safety in the workplace.   This policy is understandable but is not by itself justification for a decision to dismiss an employee. The employee handbook defines Serious Misconduct as “misconduct affecting the interest or safety of the Company’s plant, premises, product, processes or employees”.   In particular the respondent submitted that the complainant was in breach of section 7.3.7 of the Disciplinary Policy which lists the following as an example of Serious Misconduct: “Fighting, provoking or instigating a fight when on company premises”. As stated above I don’t believe that the evidence supports the contention that the complainant instigated the incident or physically engaged in fighting.   This belief is strengthened by the minutes of the disciplinary outcome hearing in which the disciplinary manager informs the complainant that as he had admitted pushing the other employee and making comments about that employee’s wife it had been decided that the complainant was guilty of “unacceptable behaviour”, which appears to me might be construed as a lesser transgression than serious misconduct. The disciplinary manager was unavailable to attend the hearing and therefore we did not, unfortunately, have the benefit of his evidence as to why he chose that wording and why he decided that the sanction of dismissal was the appropriate sanction in this instance.

The final issue to be looked at was the matter of the appeal. As outlined, the complainant lodged a written appeal and the respondent fixed a date for that appeal. Unfortunately, the day of the appeal coincided with a status red weather alert and the respondent’s premises were closed. The respondent then notified the complainant of a re-arranged date for the appeal and the complainant confirms that he received that letter.   The complainant said that he could not attend the appeal as he had a job interview but made no effort to contact the respondent in this regard. The respondent wrote to the complainant regarding his non-attendance but left the option open to the complainant of contacting them in this regard. The letter was addressed to the same address as the previous letter but the complainant stated that he had no recall as to receiving this letter. In any event, I accept that the respondent did everything reasonable to facilitate the appeal and that the fact that the complainant failed to contact the respondent about his being unable to attend means that he was at fault for the fact that the appeal was not heard.

In summary therefore, I note that the complainant was found guilty of unacceptable behaviour by the respondent and not serious misconduct. In my view his actions during the incident were provoked and were not instigated by him. That does not excuse the use of racist expression or a derogatory remark about the other employee’s wife. I note that the other employee was also dismissed by the respondent. Finally, I find that the fault for the appeal not taking place lies with the complainant. In all the circumstances and in the absence of direct evidence to the contrary I am of the view that the sanction of dismissal was disproportionate but that the complainant, by his actions and omissions, contributed significantly to this decision.

I note that the complainant worked for about 6 weeks in 2017 and found employment in October 2018.

In view of the above findings I recommend that respondent pay to the complainant the sum of €2,000.00 in full and final settlement of this dispute.