Complainant

Respondent

Anonymised Parties

A Warehouse Supervisor

A Logistics 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-00028030-001

29/04/2019

The complainant commence employment with the respondent, a logistics company, in October 2008.   When his employment with the respondent ended on 2nd April 2019, he was employed as a warehouse supervisor. His gross annual salary was €47,000. A complaint was lodged with the WRC on 20th April 2019.

In direct evidence at the hearing the respondent, Mr A, stated that an alleged assault had taken place on 19th March 2019 and he had investigated the circumstances surrounding it. He had interviewed all the parties and witnesses. Having done so he decided that the matter was serious enough to warrant two disciplinary processes; firstly, with the complainant and secondly with the person with whom the complainant had had the altercation.

At the subsequent disciplinary hearing the complainant did not deny the allegations when they were put to him by Mr A. Mr A found the complainant’s actions amounted to gross misconduct and, in line with the company’s disciplinary procedures, decided that dismissal was warranted.

The respondent stated that an appeal was allowed even though it was outside the laid down time frame within which appeals should be made. The appeal upheld the decision to dismiss.

In justifying his decision to dismiss the complainant, Mr A stated that he had a duty of care to all employees, that the complainant had been found guilty of gross misconduct.

At the hearing, when asked how much time was allowed for consideration of the matter between the disciplinary hearing and the issuing of the dismissal letter, Mr A stated around an hour and 10 minutes.

The submits that on the 19th of March 2019 he was working in the warehouse. At approximately 16.30 he returned to the office and on arrival he was asked about a delivery docket which he was told by a junior member of staff was not in file (could not be found). The complainant went to the file, found the docket and showed it to the staff member who said that the complainant was a liar and called him derogatory names using obscene language at this the complainant grabbed his colleague by the shoulder. Other staff members then intervened, and the two protagonists ceased their interaction. The following day the complainant apologised to the staff member.

The complainant submits that it was only a week later, on 25th March 2018, when Mr A came over from the UK and he was called into a meeting, he realised that an investigation into the incident was taking place. The complainant explained to Mr A what had happened. On foot of this meeting the complainant was suspended from work, with pay, for one week.

The complainant was written to by the respondent and invited into a disciplinary hearing which took place on 2nd April 2019. The meeting was chaired by Mr A. Some 70 minutes after this meeting ended Mr A handed the complainant a letter of dismissal. He was then asked to leave the premises.

The complainant submits that although Mr B did mention representation, the complainant did not have a representative at either the investigation meeting or the disciplinary hearing.

The complainant appealed the decision to dismiss him to Mr B. The complainant did not meet Mr B about his appeal. The appeal was unsuccessful.

The complainant believes that, in the circumstances, the decision to dismiss him was disproportionate, particularly in light of the fact that he had almost 12 years’ service with the respondent and had never been subject to disciplinary sanction before he was dismissed.

S6(4)(a) of the Act states without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In this case the respondent deemed the complainant’s actions assault and thus within the category of gross misconduct. The respondent’s disciplinary policy states, “Where the offence is one of gross misconduct the normal penalty will be dismissal without prior warning being issued and without notice or a payment in lieu of notice (summary dismissal).”

I do not find it unreasonable for the respondent, once it deemed the actions of the complainant to be within the category of gross misconduct, to have dismissed him.

Regarding the fairness of the procedures, I find there were two failings:

1. The complainant was not made aware that the matter was subject of an investigation until he was called into a meeting with Mr A.         He should have been notified in advance that an investigation was to take place. He should have received written notice, in advance, outlining his rights in such a situation. That he did not is not fair and a breach of natural justice.
2. At the hearing Mr A confirmed that he the time between the disciplinary hearing ending and the dismissal letter being issued was about 70 minutes. I find the length of time given to consider the matter to be insufficient to allow proper consideration of all the aspects of the case and gives rise to a suspicion that the decision to dismiss was pre-determined.        

On balance, I find that the respondent had reasonable grounds for dismissing the complainant but did not fulfil all the fundamental procedural requirements.

Accordingly, I conclude this was an unfair dismissal.

At the hearing the complainant stated that he had found work within the space of two or three days following his dismissal on terms not dissimilar, but slightly less in terms of pay, to those he enjoyed with the respondent. I am therefore of a mind to award him two month’s pay in compensation.

The complaint is well founded, and I order the respondent to pay the complainant €7,833.33.

Unfair procedures, natural justice