Complainant

Respondent

Anonymised Parties

A Chef

A Hospital

Representatives

Vivian Cullen of SIPTU

Aisling McDevitt of 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-00028778-001

30/05/2019

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

CA-00028778-002

30/05/2019

The issues in contention concern the alleged Unfair Dismissal of a Chef by a Hospital following events at a Christmas Staff party.

1:1       Unfair Dismissal Claim - CA 00028778-001

The Complainant was employed since 2016. At a staff Christmas Party in December 2018 he was initially assaulted by a fellow staff member – Mr.Xa As the Complainant was leaving the venue, he had a further interaction with Mr. Xa. The Complainant maintained that Mr. Xa attempted a further assault. The Complainant acted in self-defence and head-butted Mr.Xa. The issue was investigated by the Hospital ,in a pre-judged and pre-emptive manner, following which the Complainant was dismissed. The Investigation and Disciplinary process was unfair and procedurally seriously flawed. The penalty imposed of Dismissal was Unfair and completely disproportionate to the circumstances of the case. Legal precedents in support of the Complainant’s case were advanced.

1:2       Minimum Notice & Terms of Employment Act, 1973 - CA 00028778-002

As the Complainant was Unfairly Dismissed for Gross Misconduct, he received no Statutory Notice pay. As the dismissal was unfair, he is entitled to his Statutory Notice pay.

2:1       Unfair Dismissal Claim - CA 00028778-001

The basic facts of the case were agreed. A very serious chain of incidents had taken place at the Christmas Party. The matter had been fully and properly investigated. A proper Disciplinary and Appeal process had followed. The finding of Dismissal had been upheld at the internal Appeal stage. All the Respondent procedures were documented. Full professional representation was allowed and availed of. Witnesses had been interviewed and statements exchanged. The Appeal Chairperson was sufficiently Independent. SI 146 of 2000 - Code of Practice on Grievance and Disciplinary Procedures had been observed scrupulously. Natural Justice had been properly observed.

The final Dismissal decision was entirely proportionate to such a serious offence as Head Butting a fellow employee in a public venue. The fact that it was “Round Two” of an earlier incident and the fact that the Complainant could easily have avoided the other party, Mr. Xa, was also important.

It was, all things considered, within the “Band of Reasonableness”

It seriously endangered the good name of the Respondent particularly an Institution involved in professional Healthcare.

Legal Precedents were quoted in support of the Respondent arguments.

2:2       Minimum Notice & Terms of Employment Act, 1973 - CA 00028778-002

The dismissal was for Gross Misconduct and No Notice Pay applies. There is no valid claim here.

3:1     Unfair Dismissal Claim - CA 00028778-001

The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this   Natural Justice principle into a set of guidelines.

3:2 The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto re-running of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts ( or an Adjudicator) to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mummery LJ stated in Foley v The Post Office at page 1295 :

         “ The employer ,not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss ,in the light of the results of that investigation ,is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

Accordingly, in the case in hand the key question is whether or not Natural Justice was followed in all procedural matters and the ultimate decision to dismiss was in the “Band of Reasonableness”.

3:3       Review of the Evidence both written and Oral.

Extensive written evidence was presented by both parties and supported by considerable oral evidence at the Oral hearing. Full cross examination of the evidence and witnesses took place by the professional representatives from SIPTU and IBEC.

I did not feel that the arguments made by SIPTU that the investigations displayed a predisposed bias were substantial enough to warrant a finding that there was a serious flaw in the proceedings.

In addition, the extensive reliance placed by SIPTU on the definitions/provisions of the Non-Fatal Offences against the Person Act, 1997 and the “self-defence” arguments derived therefrom were interesting but, in an employment related situation, were not strictly as transferrable as argued.

Having listen to all the oral evidence and carefully read all the documentation and extensive employment procedures I came to the view that a full and fair process had been followed up to and including the final Appeals stage. I could find no faults under the Natural Justice or SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures headings.

3:4     The Dismissal Decision and the “Band of Reasonableness”.

Regarding the decision to dismiss ,as opposed to a range of other lesser penalties, I listened to the arguments of the Respondents that violent behaviour was a most grievous breach of all their polices that effectively left, even as Reasonable Employers, only one decision open to them.

The dismissal may well have been, understandably , most upsetting to the Complainant but I had to come to the view that it fell in the “Band of Reasonableness” for an employer in a similar situation.

3:5       Final Conclusion – Unfair Dismissal Claim CA-00028778-001

Having considered the Oral evidence ,carefully read the extensive written materials and considered the overall context I did not find the Dismissal unfair and the claim falls.

3:6     Minimum Notice & Terms of Employment Act, 1973 - CA 00028778-002

As a finding of Unfair Dismissal was not made the claim for Minimum Notice also fails.  

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section Three above for detailed reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00028778-001

Claim is not Well Founded and accordingly fails.

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

CA-00028778-002

As no finding of Unfair Dismissal was made, the claim under the Minimum Notice & Terms of Employment Act, 1973 fails.