Complainant

Respondent

Anonymised Parties

Sales Assistant

Retailer

Representatives

Self

Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00026178-001

09/02/2019

The Complainant was employed by the Respondent as a sales assistant from 15th September 2012 until 4th September 2018 when he was dismissed by the Respondent.   The Complainant was paid €352 gross per week for a 32 hour week.

The Respondent submits as follows:

The Respondent operates a small business and its reputation for quality and service is paramount.

The Complainant was employed by the Respondent on 15th September 2012. The Complainant received, and signed for, the Respondent’s Employee Handbook on 5th October 2012.  The Respondent’s Grievance and Disciplinary procedure is contained in the Employee Handbook.

On 15th August 2018 the Complainant was involved in a verbal and physical altercation with a customer. This altercation resulted in the Complainant pushing or otherwise causing the customer to fall down a short flight of steps within the premises. The customer was not injured.

The Complainant was instructed to take the rest of the day off.

The Complainant attended work on the following day. The Complainant was suspended from duties on full pay pending an investigation. The Complainant was provided with a letter stating the reasons for the suspension.

The Complainant was invited to attend an investigation meeting with an Assistant Manager of the Respondent company. This meeting took place on 17th August 2018.

By letter of 20th August 2018 the Complainant was invited to attend a disciplinary hearing on 23rd August 2018.

The Complainant was provided with the minutes of the investigation and witness statements along with a copy of the Respondent’s disciplinary rules and procedures.

The disciplinary hearing did not convene until 28th August 2018 because the Complainant indicated that he wished to make amendments to the minutes of the investigation meeting. The disciplinary hearing was conducted by another manager of the Respondent company.

By letter of 4th September 2018 the Complainant was dismissed. The Complainant was informed of his right to appeal.

By email of 11th September 2018 the Complainant appealed the decision to dismiss him.

By letter of 17th September 2018 the Complainant was invited to attend an appeal hearing on 21st September 2018. The letter specified that the Complainant should inform the Respondent by midday on 19th September 2018 of his intention to attend the appeal hearing on 21st September 2018.

The appeal was adjourned on the request of the Complainant on the 21st September to a new date of the 25th of September. On the 24th September the Complainant communicated by email to the Respondent that he did not wish to take part in the appeal and an appeal never occurred.

At no time did the Complainant deny the conduct which was the reason for his dismissal. At no time did the Complainant express remorse for his conduct.

The Respondent submits that dismissal of the Complainant resulted wholly from the conduct of the Complainant, namely the Complainant physically assaulted a customer on 15th August 2018.

Failure to exhaust local procedures

The Respondent submits that the Complainant failed to exhaust the internal remedies before bringing his complaint to the Workplace Relations Commission and that this is fatal to his complaint.

The Respondent relies on the EAT decision in Melinda Pungor v. MBCC Foods (Ireland) Ltd UD/548/2015 where it was held that the Complainant’s failure to appeal her dismissal was fatal to her claim for unfair dismissal. The Employment Appeals Tribunal stated:

“The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.”

The Respondent also relies on Aryzta Bakeries v. Vilnis Cacs UD/17/106 where the EAT held that:

“…there is an obligation on the Complainant to exhaust available internal procedures and that the Complainant failed to do so.”

Mitigation of Loss

The Respondent submits that it did not contribute in any way to the financial loss of the Complainant. All financial loss incurred by the Complainant was as a result of the Complainant’s own actions. In particular, the Respondent contends that the Complainant’s assault on a customer was the only reason for the Complainant’s dismissal. The Respondent submits that the Complainant wholly contributed to his own loss.

In summary, the incident occurred in a public forum where it was witnessed by colleagues and other customers and could have caused reputational damage to the Respondent.

The Complainant submits that he notified his manager of an exchange with a customer which had taken place on 15th August 2018 and during which, the Complainant had pushed the customer down two steps of a stairs. He was instructed to take the rest of the day off. Later in the day, he was notified by one of the Directors of the Respondent company that he was being placed on paid suspension. In this notice of suspension he was informed of an allegation of physical assault against him and the necessity for an investigation meeting to find out if there was any substance to the allegation that he forcibly pushed a customer aside on 15th August 2018.

The letter indicated that if there was some substance to the abuse, he would be required to attend a disciplinary hearing.

The Complainant submits that he only received training in how to deal with customers who had a problem with a product as opposed to dealing with verbal abuse.

The Complainant maintains that the signed witness statements of colleagues which he received at the investigation meeting never referred to his actions as physical assault.   The Complainant says that this caused him to ask who was accusing him.

The Complainant understood that he would have an opportunity after the investigation meeting to review and amend the minutes. However, he received the minutes at the same time as he was notified of a disciplinary hearing.

The Complainant objected to this as he had not had an opportunity to review the minutes. When he did amend the minutes and send them to the Respondent he was informed that the purpose was to afford him the opportunity of reviewing the notes and correcting any inaccuracies he believed were made in recording the conversation which took place during the investigation meeting but not to add to the investigation or make further points. The Complainant was told that he would have the opportunity to add to the investigation or to make further points during the disciplinary hearing.  

The Complainant submits that he acknowledged his actions from the very beginning of the process and never denied that the events that occurred. He contends that it is very unjust that he was most likely dismissed on the basis of his own voluntary report of the event and at the same time persecuted for a lack of remorse.

The Complainant contends that no allowance was made for the fact that he had been an employee of the Respondent for six years and had not engaged in similar behaviour previously.   The Complainant felt that the fact that he admitted his behaviour should have gone in his favour.

At the adjudication hearing, the Complainant accepted that he pushed the customer. He maintains that there was a lack of clarity about the disciplinary process. He feels that the procedure was unfair and that that the investigation report was taken out of context. The Complainant submits that his only issue is with the procedural aspect of his dismissal. He contends that he had understood that he would be able to amend the minutes of the investigation meeting but that this had not happened. The Complainant contends that the process should have been better explained to him and that facts were kept from him which impeded his ability to engage with the process.

The Complainant referenced the Employee Handbook and said that at every stage he had the right to know the case against him. The Complainant is of the view that he should been aware of the allegations that were made against him and be given the opportunity to cross examine this evidence, none of which occurred. The Complainant believes that if he had been given this information he would have been able to address the charges put to him in a fully informed manner.

The Complainant accepts that he received copies of the witness statements before the disciplinary hearing. He maintains that the disciplinary hearing was a personal attack on him.

The Complainant was offered an internal appeal by the Respondent but declined to participate.   The Complainant submits that he had lost all faith in the Respondent to handle his appeal internally and that the entire process has been compromised due to his inability to get obtain more information regarding the charges against him.

The Complainant submits that he received advice from the WRC to the effect that he was not obliged to participate in the internal appeals process and that it would have no impact on him seeking an external appeals process through the WRC.

The matter for me to decide is whether the Complainant was unfairly dismissed by the Respondent.

Relevant Legislation

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

“(4) 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 one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

The Complainant was subject to a disciplinary process and subsequently dismissed on the following grounds:

“… given the fact that you engaged in a physical exchange with a customer on the premises we deem this to be an act of gross misconduct which is an act of such gravity that it has completely undermined the relationship of trust and confidence between you and the business and it has rendered your continued employment with [the Respondent] untenable.”

It is not for me to decide whether the Complainant committed an act of gross misconduct; rather my role is to determine whether there were substantial grounds for the dismissal and to see what a reasonable employer would do given the same set of circumstances.

Disciplinary process

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 [S.I. No. 146/2000] sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures and they include that:

·       That employee grievances are fairly examined and processed

·       That details of any allegations or complaints are put to the employee concerned

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

At the hearing, the Complainant clearly accepted that he pushed a customer on 15th August 2018 causing him to fall down a number of steps.   The Complainant accepted in retrospect that pushing a customer was physical assault.  

Immediately following the physical exchange with the customer, the Complainant informed his manager what had occurred. This led to the Respondent invoking its Grievance and Disciplinary procedures.

The Complainant appears to have difficulty with the wording of the invitation to the investigation meeting and the subsequent disciplinary hearing which referred to an “alleged physical assault”. The Complainant contends that he did not understand what was meant by the word “alleged” in that context.

I am of the view that the word “alleged” was an appropriate word to use in relation to the Complainant’s behaviour pending the outcome of the disciplinary process.   The absence of such a qualifying word would suggest that the outcome was pre-determined and would negate the fairness and impartiality of the process.

The Complainant appears to be aggrieved that since the subject of the alleged physical assault did not lodge an official complaint, he was disciplined because he had informed his manager what had occurred. The Complainant appears to be of the view that the only reason he was being disciplined was due to his own honesty.

Frankly, I am at loss to understand the Complainant’s reasoning. It was incumbent on the Respondent to investigate a physical exchange with a customer regardless of how it came to its notice. The fact that the Complainant admitted what had happened did not mean that the Respondent could somehow disregard it.

I note that the Respondent did not rely solely on the Complainant’s version of events but sought witness statements from two other employees who were working alongside the Complainant when the physical exchange occurred.

The Complainant said that the accuser should have been named and the accusation against him should have been clear.

In UDD203 Dunnes Stores v Kati Kilpi the Labour Court considered a situation where the Complainant admitted that she engaged in alternative employment at a time when she should have been at work had she not called in sick earlier that day. The Court found that there exists a “well-established principle that there is a wide degree of flexibility afforded to employers in relation to the manner in which the principles of natural justice are applied in the conduct of disciplinary procedures. The circumstances of each particular case will determine the particular application of those principles in practice. For example, it is accepted that where an employee has freely made a clear and unequivocal admission of wrongdoing, the employer is not required to conduct as extensive an investigation into the allegations against the employee as it would in circumstances where employee has, at all times, maintained his innocence (Royal Society for the Protection of Birds v Croucher[1984] ICR 604).”

Following the reasoning of the Labour Court as set out above, I am of the view that, in situations such as this where the Complainant owns up to his actions, the naming of an accuser is not necessary.

There appeared to have been a misunderstanding between the parties as to the level of amendments the Complainant was able to make to the minutes of the investigation meeting. I note that in the invitation to the reconvened disciplinary hearing on 23rd August 2018, the enclosed documentation included the Complainant’s comments on the minutes of the investigation meeting.

The Respondent gave the Complainant the opportunity to appeal the outcome of the disciplinary process. The Complainant chose not to exercise that option.

I note the Complainant’s submission that he was advised by the WRC that he was not obliged to participate in the internal appeals process. The Complainant did not provide evidence to support his contention.

I would be surprised if the Complainant received such advice from the WRC given that the EAT and Labour Court have consistently found that there is an obligation on Complainants to exhaust available internal procedures prior to the referral of a complainant of unfair dismissal to an external body such as the WRC.

In summary, I find that the Respondent adhered to the Grievance and Disciplinary procedures which were provided for in the Employee Handbook.

Gross Misconduct

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

Prior to the physical exchange between the Complainant and the customer in question, the customer had phoned the retailer to place an order. The Complainant dealt with the call. According to the minutes of the investigation meeting, the telephone interaction between the customer and the Complainant had left the Complainant feeling “unsettled and provoked”.

Some 20 minutes after the phone call, the customer arrived in the retail outlet to collect his order. The Complainant asked a colleague to deal with the customer.   However, the Complainant did not leave the shop floor but instead engaged in a verbal exchange with the customer which concluded with the Complainant pushing the customer down two steps of a stairs.

In the retail industry the customer is king – without its customers a retailer cannot survive.  Retailers generally show their customers a great deal of latitude and treat them with forbearance and courtesy. The Complainant was aware that the customer was the employee of a business which placed regular orders with the Respondent and whose custom was valued by the Respondent. Even if the customer’s behaviour had aggrieved the Complainant, it was incumbent on him to protect the reputation of his employer and to ensure that its high levels of customer service were maintained. The Complainant had a duty not to cause any reputational damage to the Respondent.

I note that the Complainant said that he had not received training in how to deal with difficult customers. This is disputed by the Respondent. Regardless of whether or not the Complainant had received such training, he should have had the sense to absent himself from a situation which resulted in him losing his composure and pushing a customer. If the Complainant felt that he had been verbally abused by the customer, he should have reported the incident to his manager and sought his manager’s guidance and support.

After careful consideration, I find that the Respondent had a genuine belief based on a fair investigation that the employee was guilty of the alleged wrongdoing and the behaviour of the employee must be such that no reasonable employer could be expected to tolerate the continuance of the relationship any longer.

Band of reasonable responses

As to whether there were substantial grounds for the Complainant’s summary dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan 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 Bunyan v United Dominions Trust the Irish EAT endorsed the following view:

‘” the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved”

The general approach of the Employment Appeals Tribunal to cases of dismissals for conduct was set out in Hennessy v Read & Write Shop Ltd UD 192/1978 (reproduced in Madden and Kerr, Unfair Dismissal: Cases and Commentary (2nd ed., 1996), p. 317):

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to

1. the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

2. the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

Having considered the matter, I find that the decision to dismiss the complainant was within the range of reasonable responses of a reasonable employer. The sanction of dismissal was appropriate and reasonable in circumstances where the disciplinary process had found that the Complainant’s behaviour constituted gross misconduct.

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this complaint in accordance with the relevant provisions.

Based upon the reasoning as set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded and, accordingly, I find that the Complainant was not unfairly dismissed.

Gross misconduct – complaint not well founded