Complainant

Respondent

Anonymised Parties

A Climber

A Tree Management Company

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-00025339-001

27/01/2019

The complainant is a climber and he commenced working for the respondent, a tree expert company, on October 31st 2017. He was dismissed just over a year later, on November 18th 2018, following a fight with one of his colleagues. He claims that his dismissal was unfair and that it followed from a flawed and unfair investigation.

Chronology of Events

Tuesday, November 13th 2018: The complainant was working with four colleagues on trees at a private estate when, shortly after lunch, one of his colleagues, “CO” punched him. The complainant punched back to defend himself.   The foreman phoned their line manager “LM” and he phoned the complainant and CO and informed them that they were suspended.

The following day, LM contacted the complainant to invite him to an investigation meeting.

Thursday, November 15th 2018: The complainant attended a meeting with LM and a person who took notes. The complainant said that the previous Tuesday, he and his colleagues had just finished lunch and he walked around the side of the work truck when CO attacked him. He said that he tried to back away, but that CO kept coming at him and he hit back to defend himself. Another member of the team then pulled CO away. The manager, housekeeper and security officer on the site came out and told them to leave the property. CO and the complainant left in different trucks and when he got back to the company’s yard, CO had gone home.

At the meeting on November 15th, the complainant said that he thinks that CO has a problem with him and that he had been verbally abusing him for the last couple of months, but that they move on from this by shaking hands. He said that CO asked the complainant before if he wanted to fight.

Friday, November 16th 2018: LM visited the estate where the incident took place and spoke to the client. While the site was covered by CCTV, the client did not permit LM to see the footage of the altercation between his two employees.   The client said that CO attacked the complainant and that he hit back.

Monday, November 19th 2018: The complainant attended a disciplinary meeting. He decided not to be accompanied, although he had been advised of his right to be accompanied. The complainant explained his understanding of what occurred the previous Tuesday. He said that CO attached him when he went to get bags. CO started punching him and he said that he fought back. When one of the other employees separated the two, CO went to attack again, and then the client and the security officer and the manager emerged from the house and told them all to leave the property.

LM told the complainant that, at their meeting with him, CO said that the build-up to this attack was “discreet, sneaky, bullying comments.” The complainant denied that he was bullying CO and said that he himself had been bullied as a child. He said that he and CO and other colleagues had set up a WhatsApp group and that there was “videos of fully men, pictures.” He said that CO left the group and then came back.

At the meeting, LM asked the complainant why he didn’t run away when CO started to punch him. The complainant said that he had no time to think or run, and that he punched back to defend himself. The complainant said that CO “had a go” a few times and that each time he apologised. He said that CO didn’t seem to be looking after himself and that he had encouraged him to do certain things so that he would feel better.

LM adjourned the meeting for 25 minutes and then called the complainant back. He informed him that he was dismissed “due to the seriousness of the fight and bringing the company into disrepute.”

Tuesday, November 20th 2018: In a letter confirming his dismissal, LM wrote:

“At the hearing, you explained that (CO) attached you on the job site and you admitted that you fought back. You have not spoken to me about issues with (CO) prior to this and you did not given a clear reason why this happened.

“Having carefully reviewed the circumstances, the fact that you were informed that fighting would constitute gross misconduct and that you have brought the company into disrepute, I decided that summary dismissal is the appropriate sanction.”

At the end of the letter, the complainant was notified of his right to appeal and he did so by e-mail the following day, Wednesday, November 21st. His grounds for appeal were his views that the matter was not investigated in accordance with the correct protocol and that LM should not have conducted the investigation meeting and the disciplinary hearing.

Wednesday, November 28th 2018: The appeal was heard by a manager, “AH,” and the complainant was accompanied this time by a colleague. The notes of the appeal meeting show that the complainant said that he felt that he wasn’t listened to at the disciplinary meeting and that he feared for his life on November 13th, when he was attacked by CO. He said “I did what I did to defend myself, until the lads came to protect me.” He said that “false allegations have been made against me by (CO) and my character has been questioned.” He said that there is no evidence to support these allegations. He said that CO attacked him and said, “you’re getting sacked tomorrow.” The complainant said that he wanted to go back to his job.

In his appeal against the decision to dismiss him, the complainant raised the fact that no formal report was written up about the incident that led to his dismissal and that he didn’t sign any meeting notes. AH said that “there was sufficient discussion on the day” and he notes that meeting notes were amended at the complainant’s request.   He said that apart from CO and the complainant, the crew of men who were in the vicinity of the fight were not interviewed. Statement were not taken from the security guard or the client or the site manager, because the client was considered to be high profile. Regarding the allegation of bullying, AH said that there was a lack of clarity on both sides about what went on.   He said that the issue of bullying is “outside of what we are looking at.”

The complainant said that he wasn’t happy with the minutes of the meeting with him at the disciplinary meeting, although he said that he accepted some responsibility for this.   He produced a map of the area where the fight occurred and explained what happened. He said that he went to get bags and CO ran at him and punched him.   He said that he turned around and he was up against the mirror of the truck with CO punching him. One of their colleagues heard shouting and intervened. This colleague was at the appeal meeting and he said that this conduct was out of character for CO. He said that he was in shock.

AH adjourned the meeting for 20 minutes and then resumed. He told the complainant and his colleague that he had reviewed the minutes of the disciplinary meeting and that they were “a reasonable representation.” He didn’t dispute that CO started the fight. AH referred to the fact that bullying was alleged by the complainant and by CO and he said “there is obviously a bit of history.” When the complainant asked about evidence of bullying, he was informed that CO was “no longer with the company” and that it is “one word against someone else’s.”

The meeting was adjourned again for about 45 minutes, following which AH said that he was happy that procedures had been followed and based on the fact that no new evidence was submitted, he upheld LM’s decision to dismiss the complainant.   This was confirmed in writing to the complainant on December 3rd 2018.

In cross-examining by the complainant’s solicitor, Mr Ó Cochláin, LM said that, on Tuesday, November 13th, he got a call from the foreman on the site who told him that the complainant had been attacked by CO and that they were both fighting. He was informed that the client told them all to leave the site. LM said that he phoned the client’s manager the following day and she said that she got a call from the main house in which she was told that two of the respondent’s employees were fighting in the driveway.   The following day, he said that he contacted the two employees and told them to come in for an investigation meeting on Thursday, November 15th.

LM told Mr Ó Cochláin that there were five employees on the site, including the complainant and CO.   He said that he spoke to the three “uninvolved” employees and they said that they didn’t see what happened at the start but they were clear that CO attacked the complainant. He said that he was not permitted to look at the CCTV, although he knows that the security guard on the site viewed the footage.

LM said that the complainant told him that CO started a fight and that he fought back. LM said however that the site is “wide open” and that there are lots of places that he could have gone to get away from CO.   He said that he made no effort to get away.

At the hearing, the company’s representatives said that the complainant was dismissed for fighting in the garden of one of their clients. LM said that they followed the WRC’s Code of Practice on Grievance and Disciplinary Procedures. A proper investigation was carried out, followed by a disciplinary hearing.   The complainant said that he was assaulted and he punched back. LM said that no allegations of bullying were ever made by the two men.

The company’s position is that fighting comes under the heading of “gross misconduct” for which dismissal is the standard response. Their view is that the conflict was not a one-sided assault and that the actions of both employees is incompatible with the values of the company.

In his direct evidence at the hearing, the complainant said that when they were starting back after lunch on Tuesday, November 13th, CO took off his gloves and hat and ran at him. He said that stepped backwards and into the mirror of the truck. He put out his hands and CO started punching him. The security officer on the site then arrived, along with the foreman and another colleague. He said that the foreman asked him if he was okay and then he went to speak to the security guard. The manager of the client’s site then told them to leave. He said that CO asked him to come outside the site to fight and he said, “you’re getting sacked tomorrow.”

The complainant described the investigation meeting on November 15th which was followed by the disciplinary hearing on the Monday that 19th. He said that following an adjournment of half an hour at this meeting, he was dismissed.

The complainant’s position is that he was attacked by CO and he backed away and was up against the mirror of the company truck and he hit back to defend himself. He said that his actions were entirely in self-defence. On his behalf, Mr Ó Cochláin said that the documents that resulted from the investigation and disciplinary meeting were minimal. He argued that LM should have got a copy of the CCTV footage, he should have asked the client for a letter and he should have taken statements from the three other employees on the site. Mr Ó Cochláin said that fair procedures were not followed and that the minutes of the disciplinary procedure were not provided to the complainant so that he could adequately prepare for the meeting to consider his appeal. The HR manager who attended the hearing said that she is sure that the minutes were sent to the complainant in advance of the disciplinary meeting. Mr Ó Cochláin said that the complainant was hit numerous times and that he hit back twice. He said that his actions should not have been categorised as gross misconduct.  

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The conduct which resulted in his dismissal is the respondent’s belief that, when he was punched by his colleague, the complainant should have run away, instead of punching him back.

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

As has been established by the EAT in many instances, and specifically in the case of Looney & Co Limited V Looney [UD 843/1984], it is not for me to establish the guilt or innocence of the complainant. My job is to determine if it was reasonable for the respondent to conclude that the complainant’s actions were, as set out in the letter of dismissal, “gross misconduct and that you have brought the company into disrepute.”

An exploration of the facts relied upon by the respondent in reaching the decision to dismiss provides the basis for the test of reasonableness. The facts are simply that, after lunch on Tuesday, November 13th, on the premises of a high-profile client, the complainant reacted to being punched by his colleague by punching him back. Explaining his conduct, he said that he punched his colleague in self-defence, when he was backed into the mirror of the company truck and he had nowhere to go. At the hearing, the complainant produced a diagram of the scene, showing the truck and the direction from which CO came at him. The diagram shows limited options for getting away from CO, with the truck in the way, but this was disputed at the hearing, when LM said that the complainant could have managed to escape without having to hit back.

It seems to me that, when he was attacked by CO, the complainant could have run away, but this would have required a level of coolness and rationality not available to someone on the receiving end of a punch. I find that he reacted in a way that most reasonable people would react to an assault, by hitting back in self-defence. In the first few seconds of an assault, I think it’s too much to expect, and it requires a degree of passivity not generally available in the heat of the moment, to find a place to run.

In the appeal in the High Court of James Reilly against the Governor of the Bank of Ireland [2014] IEHC 241, Mr Justice Noonan observed that:

“An assessment of the reasonableness and proportionality of the employer’s response must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee.”

In the case we are considering here, the respondent must have been embarrassed by the behaviour of their employees as they engaged in a fight on the lawn of a client. I find however, that what was required in response was an apology to the client and an undertaking that an incident such as the one that occurred would not happen again. I cannot see how the retention of the complainant in the employment of the respondent would have presented an ongoing risk.

In the High Court case of Samuel Frizelle v New Ross Credit Union [1997] IEHC 137, considering the sanction of dismissal, Mr Justice Flood stated,

“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 of the effect of the dismissal on the employee.”

These precedents underline the reality that the decision to dismiss an employee has an effect not just on the individual’s current job, but on the possibility of future employment. The disciplinary procedure is intended to be progressive and to give an employee whose behaviour is not acceptable an opportunity to change, so that dismissal can be avoided. The complainant was dismissed as a result of something he did not initiate, but to which he reacted – perhaps not with the degree of restraint required. The ultimate question is, in these circumstances, was dismissal a proportionate response? In essence, does the punishment fit the crime? It is my view that the complainant should have been issued with a final written warning, so that he could reflect seriously on his conduct and be given a chance to demonstrate that he could behave in line with the company’s values.

Having reached this conclusion, I find that the dismissal of the complainant was disproportionate and unfair.

Was the Process Fair?

During the hearing of this complaint, I observed that the process that resulted in the complainant’s dismissal was in accordance with the respondent’s disciplinary procedure and with fair procedures generally. I am concerned however, that the entire process from the date of the incident to the date of dismissal took just one week, which seems to me to have given rather little time to a proper consideration of the issues.   I am concerned also that the mention of bullying by both CO and the complainant seems to have had an influence on LM’s decision to dismiss the complainant, without any evidence that bullying was a feature of the relationship between the two men.

Conclusion

In conclusion, leaving aside the efficiency with which the decision to dismiss the complainant was reached, I find the sanction of dismissal was too severe. I find therefore, that this was an unfair dismissal.

I find that the complaint made under section 8 of the Unfair Dismissals Act is well founded.   In terms of redress, I decide that the respondent is to re-engage the complainant within 30 days of the date of this decision. His absence from work from the date that he was dismissed is to be considered as a period of unpaid suspension.

Dismissal, conduct, re-engagement