Complainant

Respondent

Anonymised Parties

A Betting Shop Manager

A Betting Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027159-001

15/03/2019

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

CA-00027159-002

15/03/2019

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

CA-00027159-003

15/03/2019

The respondent operates a network of betting shops and the complainant commenced employment on September 1st 2017 in the role of a customer service manager. He was contracted to work 30 hours per week, although he sometimes worked up to 40 hours. He was paid an hourly rate of €12.97. On Saturday, September 8th 2018, the complainant went to a local pub with some colleagues at the end of his shift and, later, around 1.00am on Sunday the 9th of September, an altercation occurred on the street outside a nightclub. The complainant punched his colleague and broke his jaw. The following week, a disciplinary investigation commenced, and on September 27th, he was dismissed.

The complainant’s case is that his dismissal was unfair; he claims that he was acting in self-defence, that he did not intend to cause an injury to his colleague and he was sorry for what occurred. He claims that the respondent’s decision to dismiss him was disproportionate to the gravity of the incident, particularly, because his colleague received a lesser sanction of a final written warning.

Chronology of Events

On Saturday, September 8th 2018, the complainant finished work around 10.00pm and he and his colleagues went to a pub. One employee was leaving the job and the purpose of the gathering was a “leaving do.” Around 11.30pm, the group left the pub and went to a nearby nightclub. In the bar of the nightclub, the complainant and one of his colleagues became involved in a scuffle, and the complainant fell backwards, spilling drinks on a table where other customers were seated. I will refer to this co-worker as “CW.”   The complainant left the nightclub and went outside, but CW also left and the pair became engaged in another scuffle. In this encounter, the complainant punched CW, causing serious injury to his jaw and mouth. The Gardaí were called and took statements from witnesses. It is apparent that, at the time, both men were very drunk.

On Monday, September 10th, an Area Manager, (“AM1”) met the complainant in the betting shop to discuss what happened on the previous Saturday night / Sunday morning.   By this stage, AM1 had been informed that CW had suffered an injury to his face and that he had had an operation involving the insertion of metal plates to correct his broken jaw. The complainant was suspended pending an investigation into the incident.

On Friday, September 14th, the complainant met with the company’s Security Manager (“SEC”) in a local hotel. SEC told the hearing that the complainant admitted that he hit CW and that he did so in self-defence.

On Monday, September 17th, the complainant attended an investigation meeting with AM1.   He decided not to be accompanied.   The notes of the meeting show that the complainant said that when they were outside the nightclub, he didn’t know what CW was going to do, so he hit him first. He agreed that he could have handled things differently.

AM1 wrote a report dated September 18th 2018, in which she concluded that the complainant had a case to answer regarding an alleged assault on CW that resulted in him sustaining a split gum and a jaw broken in two places.

A disciplinary hearing took place on September 21st, chaired by a different Area Manager, (“AM2”) and again, the complainant attended without representation. The notes of the meeting show that the complainant said that he was sure that, on the evening in question, CW was going to hit him and that this was the reason he hit him first. The notes also show that the complainant said that he swung at CW, but he didn’t realise how hard he hit him or the extent of the damage he caused.

On September 27th, the complainant was dismissed. He did not appeal against this decision, although the company’s disciplinary procedure provides that he had a right to do so.

Summary of the Respondent’s Written Submission at the Hearing

It is the respondent’s case that the complainant was dismissed because of his behaviour in the early hours of Sunday, September 9th, when he caused an injury to a colleague and brought the reputation of the company into disrepute. For the respondent, Mr Lowey said that the company carried out an investigation in accordance with its disciplinary procedure, the complainant was invited to be represented and he was given an opportunity to explain his actions. Mr Lowey submitted that the dismissal of the complainant was justified by reason of his serious misconduct, his seniority in the betting shop and for failing to act in a manner to avoid the outcome that resulted in an injury to CW.

The respondent’s submission referred to the High Court decision in the case of Berber v Dunnes Stores, [2009] IESC10, where Mr Justice Finnegan held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

Based on this authority, the respondent submitted that the complainant had a duty of trust and confidence towards his employer. Referring to paragraph 16.13 of “Redmond on Dismissal Law” by Dr Desmond Ryan (© Bloomsbury Professional 2017), Mr Lowey said that an employer “should be entitled to have a high level of trust and confidence in its employees.”

The respondent’s company handbook provides details of the disciplinary procedure and, under the heading, “Misconduct During or Outside Working Hours” it provides as follows:

“The nature of our business demands the highest standard of honesty from our staff, both whilst working and outside working hours. Activities which result in adverse publicity to the Company or which cause the Company to lose confidence in the employee’s honesty and integrity, can give grounds for dismissal without notice, if appropriate.   Misconduct outside working hours will not be treated as automatic reason for disciplinary action. The main consideration will be whether the offence is one, which makes the individual unsuitable for continued employment in the current role, and if so, whether alternative jobs are available and suitable.”

Case Law

The following legal precedents were referred to by Mr Lowey in support of the respondent’s case that the dismissal of the complainant was not unfair:

Hennessy v Read and Write Shop Limited, UD 192/1978

In this early decision of the Employment Appeals Tribunal (EAT), the Tribunal found that it was not its function to determine whether a complainant was guilty or innocent and, in deciding on the matter, account must be taken of “the nature and extent of the enquiry carried out by the respondent” and the conclusion reached on the basis of the information that resulted from such an enquiry.

Allied Irish Bank plc v Purcell, [2012] 23 ELR 189

At this appeal of Allied Irish Banks at the Circuit Court, Mr Justice Linnane stated that,

“It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

Mr Lowey submitted that this precedent is highly relevant to the case under consideration here and that it demonstrates the requirement of employees to be compliant with policies and procedures and that, in this case, dismissal was a reasonable sanction.

Doyle v Asilo Commercial Limited, [2008] IEHC 445

In this appeal at the High Court, on the question of the reasonableness of the employer’s decision, Mr Justice McGovern held that,

“…it is not the function of the courts to substitute itself for the employer and to make its decision on the merits of the employer’s decision to dismiss.”

Mr Lowey argued that, considering the extent of CW’s injuries and in particular, the need for the complainant’s employer to have trust and confidence in him with regard to the nature of his employment, the sanction of dismissal was fair and reasonable.

Abbot v the Lock Shop, [1993] ELR 141

Here, the EAT held that the duty of trust is critical in the employment relationship, where the duties of an employee are of a particular nature.

Transdev Dublin Light Rail Limited v Adil Shafiq, DD 1847, August 2018

The complainant in this case was dismissed for attempting to assault a passenger on a Luas tram.   Finding that his dismissal was not unfair, the Labour Court concluded as follows:

“The Court accepts that the complainant had been taunted by a number of LUAS passengers on the evening in question and may have been the subject of racial abuse. Nevertheless, he was employed in a responsible, customer-facing role.   He had accrued considerable experience of working in an undoubtedly, at times, difficult and challenging job.   However, he had been provided with regular and comprehensive conflict management training in order to equip him to deal with difficult situations and customers.”

Tesco Ireland Limited v Ann Feighery, UDD 1866, December 2018

In this case, the complainant was dismissed for failing to pay for a bottle of wine when she was purchasing a number of items at the end of her shift. The Court found that the dismissal of the complainant was unfair because of procedural failings, but found that the breach of trust was “sufficiently grave” to warrant dismissal. In the case under consideration here, Mr Lowey argued that, as a person entrusted with managerial responsibilities, it was essential that he acted in a manner that preserved the trust and confidence that his employer was entitled to have in him. It is the respondent’s position that the “admitted act of deliberate violence” was “very serious and sufficiently grave to justify consideration of dismissal.”

Reid v Roadspeed International Limited, UD 258/1992

Here, the EAT found that,

“When a person in authority strikes a subordinate it is very difficult, if not impossible to justify.”

Yore v Tara Mines Limited, UD 326/1986

Here, the EAT addressed the issue of whether an employee’s aggressive actions were permissible.   The respondent submits that the standard of proof to establish provocation is generally very high.  

The Respondent’s Position – Conclusion

In conclusion, Mr Lowey stated that there were substantial grounds to justify the complainant’s dismissal due to gross misconduct. His behaviour on September 9th 2018, to which he admitted, resulted in his colleague’s gum being split and his jaw being broken. He argued that the severity of the blow that caused these injuries was, on the balance of probabilities, indicative of the complainant’s intention to cause not just an injury, but a serious injury. Mr Lowey rejected Ms Lawlor’s attempt to have this matter adjudicated upon in accordance with criminal standards. He submitted that the evidence does not support the complainant’s assertion that he acted in self-defence and that the correct approach is to consider the facts on the balance of probabilities.

The employer’s position is that sections 6(1) and 6(4)(b) of the Unfair Dismissals Act are applicable in this case. They conducted a disciplinary investigation, which, on the specific facts and, based on the complainant’s admissions, were in conformity with the principles of natural justice. The respondent decided that, based on the available evidence and the complainant’s admissions, on the balance of probabilities, the complainant was guilty of assaulting his colleague. As a result, the respondent lost the trust and confidence required of a person in his role in the company and his position as a manager was compromised.   On this basis, the respondent’s case is that the dismissal of the complainant was not unfair.

Mr Lowey said that the complainant’s failure to use the opportunity available to him to appeal against his dismissal and his assumption that CW would also be dismissed is a concession on his part that his conduct warranted dismissal. Mr Lowey argued that the company was entitled to find CW less culpable, as he was less senior than the complainant.   In this regard, Mr Lowey referred to the appeal at the UK Employment Appeal Tribunal of MBNA and Mr M Jones, UKEAT/0120/15/MC. Mr Jones was dismissed for punching a colleague at a work-related party. At first instance, the Employment judge found that the dismissal of Mr Jones was unfair by reason of disparity with the sanction imposed on his colleague. The Employment Appeal Tribunal overturned this decision and concluded that it was not unfair to dismiss the party who caused the most injury.

At the hearing, Ms Lawlor disputed Mr Lowey’s contention that the complainant admitted to assaulting CW. She said that he was defending himself against an aggressor, who punched him when he was in the nightclub. CW then followed the complainant outside and approached him with the objective of “sorting this out.” Ms Lawlor submitted that, in accordance with section 18 of the Non-Fatal Offences Against the Person Act 1997, the complainant was entitled to defend himself against his aggressor.

Ms Lawlor went through the chronology of events that commenced on the night and morning of September 8th / 9th 2018. An investigation meeting on September 17th was followed by a disciplinary meeting on the 21st and the complainant was dismissed on the 27th. CW was interviewed when he was fit to return to work in mid-November. The company also interviewed another employee who was in the nightclub at the time of the incident. Details of the respondent’s interview with this employee and the interview with CW in November were not given to the complainant.

Ms Lawlor pointed to the fact that, following an interview with CW when he returned to work in November 2018, he was issued with a final written warning. Ms Lawlor questioned why he was treated differently to the complainant.

Summary of the Complainant’s Written Submission at the Hearing

The complainant’s case is that, when he was in a nightclub on the evening of September 8th 2018, his colleague, to whom we are referring as “CW,” punched him in the face for no reason, and he fell backwards causing him to spill the drinks of customers at a nearby table. The complainant said that his face was marked by this “unprovoked punch” and that his face was red and bruised. The complainant said to CW, “I hope that was a joke,” to which he said, CW replied, “no.” The complainant decided to go home. When he was outside the nightclub waiting for a taxi, the complainant said that CW approached him in an aggressive manner, saying, “we’ll sort this out now.”   The complainant said that he felt threatened and he threw a punch to keep CW back from him.

A woman who worked in a local bar and who came upon the scene outside the nightclub gave a statement to the Gardaí. Her statement to the Gardaí was submitted in evidence and she also attended the hearing and gave evidence in person. She said that, on the night in question, she finished work and came upon the two men “shouting at each other about hitting each other.” She observed that both were very drunk and regarding the “fight,” she said that “they were both as bad as each other.”  

The statement of CW that he gave to Gardaí shows that he admitted punching the complainant when they were in the nightclub, and that he said that he did so “with minimal force. It was just to get him away from me.”

Outside the nightclub, CW’s statement shows that he when he offered to “sort things out” with the complainant, he was struck twice, following which he put his hands up to protect himself. The complainant crouched down and covered his body with his arms and CW said that he “hit him a couple of times on the head…” before being separated by a taxi driver and the woman from the nearby pub.

For the complainant, Ms Lawlor submitted “that the only reasonable inference that can be drawn from the complainant crouching down is that he was in defensive mode, having been assaulted and subsequently threatened by the co-worker.”

CW’s statement goes on to say, “While (the complainant) was crouching down, he grabbed me by the knees tightly.” Ms Lawlor submitted that this was an attempt by the complainant to restrain CW, but CW hit him on the top of the head.

Ms Lawlor’s submission included an analysis of the statutory definition of assault as contained in section 2 of the Non-Fatal Offences Against the Person Act 1997.   However, as my concern here is with the fairness or otherwise of the employer’s decision to dismiss the complainant, I do not intend to examine his conduct under that legislation.

The Complainant’s Position Regarding the Procedure that Led to his Dismissal

It is the complainant’s position that the respondent’s decision to dismiss him is based on an erroneous finding that he admitted to assaulting a colleague. The complainant’s position is that he did not assault CW, but that he hit him in self-defence.

Ms Lawlor submitted that, at the investigation meeting that the complainant attended on September 17th 2018, the respondent failed to put to the complainant, CW’s allegations regarding his actions on September 8th / 9th. The notes of the meeting contain no reference to what CW alleged regarding the complainant’s conduct on that evening, or his “goading” of CW at work over the preceding months. The respondent did not provide the complainant with notes of the interviews with any other witnesses.

Ms Lawlor further submitted that the report of the meeting with the complainant on September 17th makes no reference to his statement that, on the night in question, he was acting in self-defence. CW, who, Ms Lawlor said, was drunk and aggressive, accosted the complainant in the nightclub and shortly afterwards, the altercation occurred outside, and the complainant punched CW.

Ms Lawlor challenged the evidence of AM1, and her statement on the first day of the hearing that once the complainant admitted to hitting CW, that was the end of the matter, as far as she was concerned and it was not necessary to consider any other circumstances. This conclusion fails to take account of any mitigating circumstances concerning an employee’s behaviour, as provided for in the company’s disciplinary procedure.   No consideration was given to any sanction other than dismissal, which the disciplinary procedure also provides for.   Ms Lawlor said that the complainant was entitled to defend himself, and that the investigating manager was not sufficiently trained to understand this and to take account of this mitigating factor. The notes of the disciplinary hearing on September 21st show that the manager, AM2, said, “I don’t accept it was self defence as he was just walking towards you outside.”   Ms Lawlor said that this indicates a predetermined conclusion and fails to take account of the surrounding facts, that CW was shouting and roaring as he approached the complainant, that he was drunk, that he had previously assaulted the complainant in the nightclub and that the complainant felt threatened and was afraid that he would be hit again.

At the meeting he attended with the company’s security manager on September 14th, the complainant asked the manager to review the CCTV footage of the incident which would be available from a camera on a nearby pub. The security manager said that he had no interest in looking at this footage. Ms Lawlor argued that the respondent’s failure to consider this footage is at odds with the principles of the disciplinary procedure which state that an employee’s version of events will be considered “against other verifiable evidence.”

The company handbook notes that the purpose of the disciplinary procedure is to promote fairness and consistency in how employees are treated. Ms Lawlor submitted however, that this is at odds with the respondent’s decision not to dismiss CW, who, according to Ms Lawlor, “was the primary cause of the incident.”   CW was subsequently promoted to the role of customer service manager, which was the complainant’s job.

The incident occurred in the early hours of the morning of September 9th when the complainant and his co-worker were drunk. Ms Lawlor submitted that it is not fair or reasonable for the respondent to conclude that an altercation between the two men makes the complainant unsuitable for continued employment, but not CW, who started the scuffle and, according to the complainant, was the aggressor.

The Complainant’s Response to the Company’s Submission

From a comprehensive review of the respondent’s submission which was read by Mr Lowey on the first day of the hearing, I have extracted below only the statements where the complainant disagrees with the respondent or which have not already been referred to above.

The complainant takes issue with the reference in the respondent’s submission, to his role in the company as a “brand ambassador.” The complainant occupied a role that required the same level of trust and confidence as every other manager and his personal time was his own.   When he attended the nightclub on the evening on September 8th 2018, he had changed out of his uniform.

Paragraph 25 of the respondent’s submission states that the complainant “administered a shattering blow to his work colleague’s jaw.” The complainant disputes this contention and says that the CCTV footage of the incident was available for the respondent to review, but that they declined to use this evidence. The complainant accepts that it was unfortunate that CW’s jaw was broken, but that he could just as easily have been bruised, as he was. It is the complainant’s case that CW started the altercation, behaving in an aggressive and drunken manner in the nightclub and continuing the argument outside when the complainant was attempting to go home.

The complainant reiterated that, during his meetings with the security manager and the investigating managers, AM1 and AM2, while he admitted hitting CW, he made no admission of assault and he claims that he was acting in self-defence. However, when the report of the investigation meeting of September 17th was issued to the manager appointed to chair the disciplinary hearing, there was no mention of the complainant’s explanation that he acted in self-defence. The complainant’s position is that this renders the entire disciplinary procedure fundamentally flawed.

The complainant disagrees with the respondent’s assertion that, between his meeting with the security manager on September 14th and the disciplinary hearing on September 21st, he changed his evidence. He maintains that his concern outside the nightclub was that CW was going to hit him again. He claims that it is not correct for the respondent to infer that he should have ascertained with certainty if this would occur, prior to taking the action he took, which he believed was necessary to protect himself.

Regarding his failure to appeal against his dismissal, the complainant said that he “lost all trust and confidence in the process carried out by the respondent” and he felt that they were engaged in a “box ticking exercise with a predetermined outcome against him.”    

Legal Submissions

Ms Lawlor responded to the legal precedents referred to in the respondent’s submission.

Tesco Ireland v Ann Feighery, UDD 1866

This reference is to highlight the requirement of an employer to carry out a disciplinary investigation with a “scrupulous attention to fairness.”

Nylarnski v John Holland and Henry Gillanders trading as Pianos Plus, UDD 1294/2008

Here, the Employment Appeals Tribunal (EAT) referred to the Supreme Court decision in the case of Mooney v An Post (unreported 20th March 1997) where Mr Justice Barrington stated:

“Dismissal from one’s employment for alleged misconduct with possible loss of pension rights and damage to one’s good name, may, in modern society, be disastrous for any citizen. There are circumstances in which any citizen, however humble, may be entitled to the protection of constitutional and natural justice.”

The complainant’s position is that he was not provided with all the statements relied upon by the respondent when a decision was reached to dismiss him. He argues that this non-disclosure is a fatal flaw in the procedures followed by the respondent.

The respondent asserts that the physical altercation between the two men inside and outside the nightclub on September 8th / 9th 2018 was a breach of trust and confidence and is the reason for the complainant’s dismissal. Ms Lawlor argued that this is not consistent with the respondent’s decision not to dismiss CW, and to promote him to a more responsible job. It was open to the respondent to issue the complainant with a final written warning, to demote him or to move him to a different branch outlet, all of which, according to Ms Lawlor, would have been a more proportionate response.

A General Manager v A Hotel, ADJ-0011368

In this case, the adjudication officer found that the procedures that resulted in the dismissal of the hotel manager resulted in an unfair outcome, because he was not presented with all the evidence against him and he was not given an opportunity to respond to that evidence.

The complainant’s submission notes that he was never informed of CW’s allegations against him and he was not given details of the evidence of any other person and he had no opportunity to reply to this evidence. For this reason, he claims that there was a breach of fair procedures.

Ms Lawlor referred to the 1971 Supreme Court case, In re Haughey, (unreported) where it was established that, where a person is at risk of having his good name or any of his personal rights jeopardised, he must be permitted to vindicate these rights by being provided with the evidence against him, by being allowed to cross-examine his accusers and by being permitted to present evidence in his own defence.

Ms Lawlor referred to section 5(2)(a) of the Unfair Dismissals Act, which provides that it will be unfair for an employer to dismiss an employee for taking part in a strike if,

“…one or more employees of the same employer who took part in the strike or other industrial action were not dismissed for so taking part…”

She suggested that this is analogous to the complainant’s case, where his colleague was not dismissed for starting an altercation and making the complainant feel threatened and afraid.

Reid v Roadspeed International Limited, UD 258/1992

Ms Lawlor submitted that this precedent is not relevant because the incident did not involve a person in authority striking a subordinate and the incident under consideration here did not occur in the workplace. She said that Yore v Tara Mines, UD 326/1986 is also not relevant because the complainant makes no claim of being provoked by CW.

In the case already referred to above of A General Manager v A Hotel, the adjudication officer, Ms Daly, found that the General Manager contributed 70% to his dismissal. Ms Lawlor argued that the complainant made no contribution to his dismissal because he was not looking for trouble and he was defending himself, as he was entitled to do.

The complainant’s case is that contrary to the finding of gross misconduct, he did nothing wrong.   He believed that the use of force was necessary to protect himself and he used the degree of force that he thought was reasonable in the circumstance. Ms Lawlor submitted that the test of reasonable self-defence is subjective and refers to what the complainant believed was necessary and not what another reasonable person would have done.

It is the complainant’s case that the altercation between the two men “did not affect in any material way the complainant’s honesty, competence and character in carrying out his work duties.”

The Complainant’s Position – Conclusion

Concluding the complainant’s case, Ms Lawlor said that I must be satisfied that the respondent had good cause and acted reasonably in dismissing the complainant. She asserts however that the company failed to follow the principles of fair procedures and natural justice and that the managers investigating what occurred failed to consider all the available evidence, including CCTV footage and a witness who gave a statement to Gardaí. When they dismissed the complainant, they had not interviewed CW and they have not called him to give evidence at this hearing.

Ms Lawlor said that the only evidence of what occurred on the night in question is the evidence of the complainant and one other witness who worked in a local bar. A reasonable inference must be drawn from their evidence, that CW approached the complainant outside the nightclub with the intention of punching him and the complainant responded by hitting him in an act of self-defence. She said that “the best predictor of future behaviour is past behaviour” and CW had already punched the complainant inside the nightclub. Ms Lawlor submitted that the test of reasonable self-defence is not the appropriate test. The applicable test is more subjective, and requires me to consider if the complainant thought he was going to be hit by CW and if he used force to meet that possibility. Ms Lawlor said that the complainant is “not obliged to measure the blow with exactitude” and that he made an honest mistake about the force necessary.

It is the complainant’s case that CW is more culpable because he made the first physical assault on the complainant. After this, the complainant left the scene, but was pursued outside by CW. At that point, Ms Lawlor said, “all his actions were defensive.”

Ms Lawlor’s view is that the failure of the disciplinary investigator to note the complainant’s position that he acted in self-defence is a serious flaw. Finally, Ms Lawlor submitted that the outcome of the investigation was predetermined and the managers engaged in a box-ticking exercise. She said that, in seeking to justify their predetermined conclusion, the managers relied on selective details, all to the detriment of the complainant, instead of considering the mitigating circumstances.

Evidence of the Respondent’s Security Manager

In his evidence at the hearing, the Security Manager, “SEC,” said that he met the complainant on September 14th in a local hotel to hear his account of what occurred on September 8th / 9th. He said that he recorded his conversation with the complainant and he typed up the recording and printed out a copy of the typed record and gave it to the complainant for signing.

At their meeting, SEC said that the complainant showed him the “very faint marks” on his head, where he was hit by CW. In his statement to SEC, the complainant said that when they were outside the nightclub on the street, he didn’t know whether CW intended to hit him or hug him.

Cross-examining of the Security Manager

In response to Ms Lawlor, SEC said that he knew that footage was available from a security camera on a local bar, and he assumed that the Gardaí would look at this. He said that he would have looked at the footage if the complainant had produced it.

SEC referred to a statement he took from another employee who was in the nightclub with the two men on the evening in question. This employee told SEC that she saw CW raising his arm towards the complainant, but she doesn’t know if he hit the complainant. SEC said that there is no evidence that CW punched the complainant in the nightclub.

SEC accepted that CW is taller than the complainant and that they had both taken a lot of alcohol.   He said that he spoke with CW when he came back to work in November.

Evidence of “AM1,” the Manager who Conducted the Investigation Meeting

In her evidence, AM1 said that on Sunday, September 9th, she received a text message from CW, telling her that he had been punched by the complainant. She said that she phoned the complainant around 6.15pm, and told him about CW’s phone call. AM1 said that she went to the outlet where the complainant worked on Monday, September 10th and she told him that he was suspended, pending an investigation into the incident outside the nightclub.

On September 17th, she held a meeting with the complainant, in accordance with the investigation stage of the company’s disciplinary procedure. The complainant decided to attend on his own.   The notes of this meeting were submitted in evidence and they show that the complainant said that when he was outside the nightclub and about to ring a taxi, CW came towards him and that he didn’t know what CW was going to do so he hit him first. The complainant said that he wasn’t going to take a chance of being hit again. He said that it was “a horrible feeling to put someone in hospital.” When AM1 asked him if he could have done anything differently, he said, “I done what I done and I have to live with the consequences.”

In her report of this meeting, AM1 concluded that the complainant’s admission that he struck his colleague was enough to indicate that he had a case to answer concerning an assault on a work colleague. AM1 said that she didn’t look for the CCTV footage of the incident.

Cross-examining of AM1

For the complainant, Ms Lawlor asked AM1 if she reached the conclusion she reached only on the basis of the complainant’s version of events and AM1 agreed that this was the case.

AM 1 agreed with Ms Lawlor that, before this incident, CW was training to be a customer services manager and that he started in this role on his first day back at work.

AM1 said that her report didn’t refer to the complainant’s explanation that he struck CW in self-defence, because she decided that it was enough that he had struck him.

Evidence of “AM2,” the Manager who Conducted the Disciplinary Hearing

AM2, who chaired the disciplinary meeting on September 21st said that, in advance of the meeting, she was provided with the notes of the meeting that SEC had with the complainant on September 14th and the report of AM1 of September 18th. She said that at the end of the meeting, at which the complainant decided again not to be represented, she concluded that, regardless of the injury caused to CW, the complainant’s actions had been irresponsible and inappropriate.   She said it wasn’t “good for the reputation of the company for an employee to have to be restrained by a member of the public.” She said that in her view, CW did not present a risk to the complainant.

In response to a question about a possible alternative sanction, AM2 said that “the company couldn’t risk keeping him in the business” and that the company needed to have trust in its employees. She said that she was “not willing to make a decision on a lesser sanction because I didn’t think we could trust him.” She said that she didn’t take the explanation of self-defence into consideration.

Cross-examination of AM2

Ms Lawlor asked AM2 how she could have no doubt that the complainant did not act in self-defence.   AM2 replied that she didn’t accept the self-defence argument because the complainant said that CW was walking towards him. She said that, before deciding about the dismissal of the complainant, she didn’t wait for CW to be available for an interview.

Evidence of the Complainant

The complainant described the events of the night and early morning of September 8th /9th when he went first to a pub in the town where he worked and then to a bar and nightclub. He said that he had three pints in the pub and three more in the nightclub. CW left the nightclub for a while and when he came back, “out of nowhere” the complainant said that he punched him in the face and he fell backwards, spilling drinks on a table where other customers were seated. The complainant said that when he knew that CW wasn’t joking, he told one of his friends that he was going home and he went outside. He said that CW emerged from the nightclub “shouting and roaring” and said, “we’ll sort this out.” He said he was afraid that he would be hit again and he swung a punch at CW, expecting him to move out of the way. He said that he didn’t intend to harm him. When the punch landed, he said that CW “came at me and I curled up on the ground. I held his legs, trying to stop him hurting me.   He was punching down on the top of my head.” He said that it all happened very quickly, in the space of a minute. He said that he heard someone shouting “Stop!” and CW “was pulled off me.”

The following day, the complainant said that he received a telephone call from AM1, who told him that CW had been seriously injured. He said that he felt awful and that he didn’t mean to cause harm.

Asked about his interviews with AM1 and AM2 as part of the disciplinary process, the complainant said that he thought they had already made up their minds before the meetings.   He said that AM2 didn’t accept his explanation that he acted in self-defence and that the meeting with her was “a pointless exercise.”

At the end of his evidence, the complainant said that he has not worked since his dismissal, although he said that he hasn’t stopped in his efforts to find alternative employment.

Cross-examining of the Complainant

The complainant agreed with Mr Lowey that, as a manager in the respondent’s company, he had a duty to behave appropriately outside work. He said that he exemplified this by leaving the nightclub when he was punched by CW.

The complainant agreed that, when he commenced in his job, on September 4th 2017, he signed an acknowledgement to confirm that he read and understood the contents of the company handbook. One of the provisions of the disciplinary procedure, which is contained in the handbook, is that an employee may be dismissed for an assault occurring inside or outside the workplace.

Mr Lowey referred to the complainant’s interview with SEC on September 14th, during which he said that when he punched CW outside the nightclub, he saw blood coming from his lip. When he was asked why he didn’t report what occurred to his manager, he said that he wanted to speak to CW first. He said that he and CW were friends and he just wanted to talk to him. He said that, the following day, until he heard from AM1 by telephone, he didn’t know how bad things were.

In the same interview with SEC, Mr Lowey referred to the complainant’s statement that he didn’t know if CW was about to hit him or hug him when he came out of the nightclub.   Mr Lowey asked, if the complainant wasn’t sure what was about to happen, why he took a swing at CW. The complainant replied, “that was just something I said.” He said that CW was coming at him aggressively, saying, “we’ll sort this out” and he was sure he was going to hit him. The complainant suggested that SEC wasn’t interested in what he had to say. He said, “coming at me” means “coming at me to fight.” If SEC or AM1 were interested in what had occurred, the complainant said that they would have looked for the CCTV footage of the incident.

Mr Lowey suggested to the complainant that he could have acted differently; he could have gone back inside the nightclub, he could have held on to CW’s arms, he could have called a bouncer or he could have walked away. In response, the complainant said that he had less than a minute to react. He said, “I’d love to have had time to call a bouncer.”

Re-direction by Ms Lawlor

In response to a further question from Ms Lawlor, the complainant said that he doesn’t know why he told SEC at the interview on September 14th that he didn’t know, when CW approached him shouting and roaring outside the nightclub, if he was going to “hug me or hit me.” He said that he and CW were friends, but that CW was “out of control.”

Evidence of an Employee of a Nearby Pub who Witnessed the Incident

This witness said that she knows both CW and the complainant and she knew that they got on well with each other. She said that the bar where she worked closed around 1.00am on the morning of Sunday, September 9th and she was walking towards her car. She said she saw “two guys on the ground” and she recalled that CW was on top of the complainant. She said she asked a man if they were “messing” and he said that they weren’t. She said that she pulled CW, who she described as “out of control and very drunk,” off the complainant.  

Cross-examining of this Witness

In response to Mr Lowey, this witness said that she didn’t observe what happened before the fight and she didn’t know why it started. She said that in her statement to the Gardaí, she said that they two men were as bad as each other.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) 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.”

Section 6(4)(b) of the Act provides that;

“…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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The letter of dismissal dated September 27th 2018 states:

“Your actions constituted gross misconduct as outlined in the company handbook and as follows:

§    Assault or threatening behaviour including abusive and/or offensive language aimed at customers or other members of staff or anyone associated with the company, namely

§    Violent, dangerous and intimidatory conduct

§    Any behaviour outside work which adversely affects employee or customer relations or which brings the Company’s name into disrepute.”

It is evident therefore, that the complainant was dismissed because he assaulted his colleague and because of the effect this conduct could have on the company’s reputation with its customers and employees. The complainant’s case is that he acted in self-defence and, having been punched by CW in the nightclub, he was entitled to protect himself from being hit again.

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

My job is not to consider the guilt or innocence of the complainant, but to consider the reasonableness of his employer’s decision to dismiss him by an assessment against a standard of reasonableness that applies generally to all employers.   This standard was set out in the seminal case of Looney & Co Limited v Looney,UD 843/1984 and has been exemplified since then in numerous precedents including in British Leyland v Swift, IRLR 91 and Allied Irish Bank v Purcell[2012] 23 ELR 189.

In defence of the respondent’s decision, Mr Lowey referred to the UK Employment Appeal Tribunal case of MBNA v Jones, UKEAT/0120/15/MC.   Mr Jones was dismissed because, at a celebration to mark the 20th anniversary of the company, he punched a colleague. Later that evening, in response to Mr Jones’s conduct, the colleague sent him several unsavoury text messages threatening to cause him serious injury.   At an initial hearing at the Employment Tribunal, the judge found that the dismissal of Mr Jones was unfair, due to the disparity between that outcome and the issuing of a final written warning to his colleague. MBNA appealed against this finding. At the Appeal Tribunal, the judge applied the guidance regarding disparity which was set out in the decision of Hadjioannou v Coral Casinos Limited [1981] IRLR 352. Here, the UK EAT confirmed that an employer’s decision not to dismiss an employee in the same circumstances will only render a dismissal unfair in three scenarios:

Firstly, where an employer has treated similar cases less seriously;

Secondly, where it is apparent that there was another reason for the dismissal and the stated reason was not genuine, or,

Thirdly, where employees “in truly parallel circumstances” have been treated differently so as to support an argument that it was not reasonable to dismiss the employee and that a lesser sanction would have been appropriate.

In MBNA v Jones, the judge concluded that the two employees were not in “truly parallel circumstances,” where Mr Jones punched his colleague and his colleague sent him threatening text messages but did nothing. MBNA’s appeal was successful and the dismissal of Mr Jones was found to be not unfair.

It is my view that, in the case we are considering, the two employees are in parallel circumstances, apart from the fact that the injury inflicted on CW was very serious.   Both men were involved in a physical altercation on the street outside a nightclub and both threw punches. In the final written warning issued to CW, the manager who conducted the hearing notes that CW admitted that he started the initial scuffle inside the nightclub, claiming that he was goaded by the complainant. It is apparent therefore, that he punched the complainant in the nightclub. The complainant left and he followed him outside and “began a conversation again,” with the purpose of “clearing the air.” The complainant then swung at him, and broke his jaw.

Unlike MBNA v Jones, where one of the protagonists threatened the other by text message, the complainant and his colleague both engaged in a physical attack. Furthermore, the evidence indicates that CW started the fight in the nightclub and was adamant about keeping it going out on the street. The complainant’s reaction by swinging a punch which broke CW’s jaw is inexcusable; however, his conduct was on a par with that of CW, who started the row but fortunately, failed to inflict an injury.

The final written warning issued to CW describes his behaviour on the night of September 8th / 9th 2018 as gross misconduct due to “assault or threatening behaviour” and “any behaviour outside work which adversely affects employee or customer relations.” Both phrases are included in the letter of dismissal issued to the complainant, which includes an additional phrase, “violent, dangerous and intimidatory conduct,” which could have been equally applied to the conduct of CW.

Consideration of the Case Law Presented

I accept the usefulness of the precedents concerning the role of a tribunal and my job as the adjudicator, to consider, as set out in Allied Irish Bank v Purcell, “if it was reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”   It must be necessary for the respondent to have the same degree of trust in CW as required of the complainant, but no evidence has been presented to show how, after the incident, CW fulfilled this requirement to a greater degree. It is my view that, having decided to dismiss the complainant for engaging in a physical altercation likely to bring the reputation of the company into disrepute, it would have been reasonable to dismiss CW for the same reason.

I do not accept the relevance of the case of Transdev Dublin light Rail Limited v Shafiq, where the Labour Court found that Mr Shafiq’s dismissal was not unfair. While he was working as a revenue protection agent, Mr Shafiq attempted to assault a customer on a Luas tram. Neither the complainant or CW were at work when the fight between them occurred and no customer was involved. Mr Shafiq was specifically trained not to do what he did and to deal with aggressive customers in a more measured manner. His actions significantly undermined his employer’s confidence in his ability to do his job. The capacity of the complainant to carry out his job to a satisfactory standard was never in question.

In respect of the case of Tesco v Ann Feighery, the breach of trust that resulted in her dismissal was said to be on a par with that of the respondent on this case. However, as I have set out above, that breach of trust must have applied equally to CW as it did to the complainant.

In Reid v Roadspeed International, the issue of note was the fact that Mr Reid’s dismissal resulted from a finding that he struck a subordinate. In the case under consideration here, while the complainant was a customer service manager, as a person on an hourly rate of €12.97, he was not a person of any significant authority. In his evidence at the hearing, he said that he and CW were friends.

Conclusion

In the context of this complaint, where the behaviour that caused the dismissal resulted in a serious injury to another person, I am mindful of the effect of a finding that a dismissal is unfair, and the implication that such behaviour might be condoned. It is clear to me that the complainant’s behaviour was reckless and dangerous. It is my view however that, in the circumstances where his colleague was issued with a final written warning for engaging in the same behaviour, then the decision to dismiss him was not reasonable and the sanction of dismissal was excessive. I must conclude therefore, that his dismissal was unfair.

I have decided that the dismissal of the complainant was unfair and it is my view that the most appropriate form of redress is compensation.

On the day of the second hearing, July 17th 2019, the complainant had not secured any employment since his dismissal in September 2018. He presented some evidence that made 11 applications for jobs between September 2018 and July 2019, which is equivalent to about one application per month. It is apparent that he has not, as set out by the EAT in Sheehan V Continental Administration Company Limited, UD 858/1999, been “profitably employed in seeking to mitigate his loss.” I accept the complainant’s contention that he lives and works in a rural area, where employers may have knowledge of the reason for his dismissal, and he got no reference from the respondent. That said, in the employment scenario that prevailed in 2018 and 2019, I think that, with more effort, he could have found a suitable job. Taking this into account, I decide that the respondent is to pay him compensation of €6,000, equivalent to approximately 13 weeks’ pay.   As this award is compensation for loss of earnings, it is subject to the usual statutory deductions.

Dismissal, gross misconduct, assault