Complainant

Respondent

Anonymised Parties

Warehouse operative

Discount retailer

Representatives

Emeria Flood

Nooney and Dowdall Solicitors

Killian O'Reilly

McDowell Purcell Solicitors

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-00019919-001

21/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00020867-001

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00020867-002

30/07/2018

The Complainant was a warehouse operator who worked for the Respondent in its regional distribution centre. The Complainant started work for the Respondent on the 5th of April 2011.   His employment ended on the 28th of February 2018. He lodged his compliant with the WRC on the 21st of June 2018.

CA/00019919/01

In terms of redress the complainant was seeking compensation for his unfair dismissal. His employment was terminated on the 28th February 2018 on the grounds of gross misconduct.  

He took up alternative employment with a local manufacturing company on the 25th of April 2018. This employment ceased on the 20th of June 2018 as his contract had not been renewed.

He was waiting for a safe pass manual handling course which was run in November 2018 to find other work. He registered with recruitment agencies.

He commenced employment as a labourer with the building company on the 11th of January 2019.

He gave examples of seven specific roles he applied for and stated that he had made application through online recruitment agencies for work.

The Respondent’s case is that the facts of dismissal were not in dispute.   Its case was that the Complainant aggressively used racially charged language towards a colleague in the workplace and following a comprehensive investigation, disciplinary and appeal process, the Complainant’s employment was terminated on the 28th of February 2018.

The specific allegation was that the Complainant shouted, “get that black man out of here”. The incident was witnessed by the regional logistics manager who was present at the scene. The person at whom the comments were made, did not actually hear the Complainant’s outburst, but he was aware it had been made.

The Respondent’s dignity at work policy and procedure was contained in the employee handbook. The Respondent’s position is that it had a zero-tolerance policy to any form of bullying or harassment.   The definition of harassment used by the Respondent in its policies in line with the Employment Equality Act.

The Respondent’s position is that the outburst made by the Complainant was made to undermining his colleague’s dignity and it had the effect of creating an intimidating, degrading, humiliating and offensive environment.

On the 19th of January 2018 the Complainant was suspended on full pay pending an investigation into the alleged incident. This took place on the 24th of January 2018.   The Complainant confirmed that he had used the words as alleged and that he said, “will you take that black man out of here”.

The Respondent completed its investigation on the 6th of February 2018.

A disciplinary hearing took place on the 15th of February 2018.

At the disciplinary hearing the Complainant acknowledged that his outburst could be considered racist. He contented at the time he didn’t consider that he had done anything wrong. He acknowledged he should not have used the phrase that he did.

On the 22nd of February 2018 the Complainant was invited to a disciplinary outcome meeting. The decision maker had come to the view that the Complainant’s contract ought to be terminated on the grounds of gross misconduct with immediate effect.   A lesser sanction was considered.   On the balance of probabilities, the decision maker found the complainant’s comments were racially motivated and delivered in anger.

On the 23rd of March 2018 an appeal hearing took place. The Complainant appealed on five specific grounds. These were all addressed at the appeal hearing.

The appeal decision maker wrote on the 3rd of April 2018 to the Complainant to confirm the outcome of the appeal hearing. The points raised by the Complainant in his grounds for appeal were addressed. The decision maker upheld the decision to terminate the Complainant’s employment.  

In summary, the Respondent’s position is that the Complainant was afforded sufficient notice of the possible consequences of the disciplinary process and at all times afforded an opportunity to answer the allegations put to him and to present his case on his own behalf. The decision to terminate the Complainant’s employment was not taken lightly and followed a comprehensive investigation, disciplinary hearing and appeals process. Every effort was made to ensure that fair procedures were afforded to the Complainant at all times. The Respondent acted reasonably at all times in accordance with the procedure in the Respondent’s employee handbook. Overall the dismissal of the Complainant was fair and in accordance with the Unfair Dismissal Act 1977. The Complainant’s actions were of such a severity that the Respondent honestly and reasonably believed that this could not be overcome with a lighter sanction. The Respondent referred to clause 13 of its employment contract and the definition of gross misconduct. The example quoted was that the Complainant’s actions were “conduct tending to bring you or the company into disrepute”.

The Respondent submitted that the dismissal was an appropriate sanction in circumstances because the conduct of the Complainant was so fundamentally in breach of its values and principals as a multinational employer operating across the world employing thousands of people from different nationalities.   The Respondent has a zero-tolerance approach to any incidents of racially motivated discrimination or harassment. The Respondent submitted that the dismissal fell within the range of reasonable responses available to the Respondent. The treatment of the Complainant was consistent with treatment of all employees.

The Respondent disputed that the pick rates were an issue and the Complainant would not have been disadvantaged by low pick rates.

The Respondent stated that it had sixteen different nationalities working for it in the centre that the incident took place and it had a responsibility to intervene if anyone’s dignity was being infringed.

The Complainant’s case is that he was employed by the Respondent for 7 years and he had never a racial accusation made against him before.

The co-worker at which the comment was directed did not wish to pursue a complaint under the dignity at work policy.

The Complainant denied that it was shouted or said in an aggressive manner.   There was air conditioning in the area and to be heard, one had to speak loudly. The Complainant gave evidence that he didn’t think he said the words in an aggressive way.

There were three colleagues, the Complainant and two others (who were in front of him) beeping of horns on their picking trucks at the time the comment was made. The Complainant denied that he said he didn’t care that the words he used was racist and that he would say what he wanted.

The Complainant submitted that he has no animus towards black people and that he named a co-worker as a friend and he selected this friend to attend with him to the disciplinary hearing.

The Complainant alleged that the term black man was a term commonly heard on TV shows and that it wasn’t offensive. He apologised for the use of the word.

He explained the comment was said due to pressure of work. He had worked 10 hours that day and was tired. The new pickers such as the operative involved in the incident were slowing him down and putting him under pressure “because his pick rate would be bad”. He was scared because his pick rate would go down and this could result in his rosters being changed, his work hours cut, his days off being changed. This happened to others and he was worried about it happening to himself.

He couldn’t proceed with his pick as the co-worker had blocked the aisle. He didn’t know the co-worker’s name and described him as a black man. He just wanted to keep going with his own work and keep his productivity up.      

His legal counsel submitted that the Complainant’s dismissal was disproportionate to the offence accused of and that a warning would have been enough in the circumstances where the Complainant had no previous disciplinary issues. He argued that the subject of the comment hadn’t heard the comment and he didn’t make a complaint to the Respondent. This colleague wasn’t canvassed as to whether he wanted the matter dealt with formally or informally. He submitted that the words were not racially charged and the context in which they were said was important. The Respondent should have looked at the words in terms of a spectrum of what could have been said. He argued that dismissal should not be the automatic result. He submitted that the words said were on the mild end of the spectrum and merited a measure short of dismissal.

Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

I have read the interview notes and witness statement of the person against whom the Complainant’s words were directed. He was not at the hearing and not available for cross examination. He said that he was aware of “guys” behind him beeping their horns applying pressure to him. He listed just one of the “guys” as the Complainant. He stated that the operatives were continuously beeping their horns at him to make it known that he should pick faster. He felt they thought that he was holding them up. Even though he didn’t hear the words used by the Complainant, when conveyed to him afterwards, he found the words used offensive. He also confirmed that he had not been subjected to any racist remarks before.    

I have considered the evidence from the Regional Logistics Supervisor. His statement and evidence at the hearing was that he heard the words “get that black man out of the chiller”. I have noted the additional words “wrapping” that the Complainant wished to note for the record as to what he said.

I have considered the Complainants submissions and note that he had worked for 7 years for the Respondent and that he was considered a good worker. He had a family to support and was clearly anxious to maintain his good standing with the Respondent in terms of his work productivity.

The question to be answered is whether the Respondent has demonstrated that there were substantial grounds justifying the dismissal. This is answered by applying the objective standard of a reasonable employer, in those circumstances and in that line of business, would have behaved: see Bunyan v United Dominions Trust (Ireland) Ltd UD 66/1980 (reported at [1982] I.L.R.M. 404).

Noonan J. in Bank of Ireland v Reilly [2015] E.L.R. 229, held that the question is “whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

It is not for me to ask whether I would dismiss in the circumstances of this case, but to ask was it reasonable for the Respondent to make the decision it made. I found this case to be a difficult one to make a decision on.   Both parties argued their cases very well and there was merit in both arguments.

The circumstances of the case were in relation to a new employee being put under pressure by a co-worker and the utterance of racially charged words albeit words which the new employee didn’t hear.

I appreciate that the Respondent was in a difficult position and had to be seen to act on the facts of the case.   A manager witnessed what occurred on the 17th January 2018. It escalated from what he thought was horseplay to something more serious.    

The Respondent stated that it operated a zero-tolerance policy and submitted that others were treated the same as the Complainant, but no details were presented to me apart from a passing reference.

I don’t accept the Complainant’s excuse for his behaviour namely the pressure of work he was under. The Complainant worked for the Respondent for 7 years without any disciplinary issues that I was made aware of.

Issues on the procedural defects in the disciplinary process were raised by the Complainant.

Taking into account the evidence provided to me at the hearing and the written submissions, I consider that while the Respondent followed fair procedures in the main in its disciplinary process, I have decided that the facts of the case did not warrant the disciplinary sanction of dismissal meted to the Complainant.

Therefore, I find that the decision made by the Respondent to dismiss the Complainant was outside the band of reasonable responses and because of this the dismissal was unfair. The bar for what justifies gross misconduct and dismissal is a high one. In considering the facts of the case, I don’t believe that they were at that level.   On the balance of probabilities, I accept the Complainant’s case was that the words were said, but they were not said in an aggressive manner. On that basis, a lesser sanction could have been imposed while still having the deterrent effect required.

However, the Complainant did contribute towards his dismissal in terms of his actions and words on the day in question. Also, the efforts he used to mitigate his losses in terms of completing a safe pass course and applying for a replacement job were not enough.   Because of this, the award of compensation being made is being reduced substantially.

CA/00020867/001

Withdrawn at hearing

CA/00020867/002

Withdrawn at hearing

CA/00019919/01. The complaint is well founded, and I award the Complainant the sum of €4,500.00.

Racially charged words