Complainant

Respondent

Anonymised Parties

A Door Manufacturer

A Joinery Firm

Representatives

Binchy Law

Peninsula Group Limited

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-00022121-001

24/09/2018

The Complainant was employed by the Respondent as a Door Manufacturer from 16 April, 2012 until 25 July, 2018 when his employment was terminated by way of dismissal. The Complainant was dismissed from his employment for gross misconduct as a result of an incident with another employee which took place on the factory floor on 20 June, 2018. The Complainant claims that the penalty of dismissal was disproportionate in the circumstances and that the Respondent failed to apply proper procedures when effecting his dismissal. The Complainant claims that he was unfairly dismissed from his employment contrary to Section 6 of the Unfair Dismissals Act, 1977.

The Respondent denies the claim of unfair dismissal and contends that the Complainant was dismissed for gross misconduct after he had physically assaulted a colleague in the workplace. The Respondent contends that the Complainant was dismissed following a thorough and comprehensive disciplinary process which fully complied with the principles of natural justice and fair procedures.

The Complainant submits that he was unfairly dismissed by the Respondent on the basis of a wrongful conclusion that he had physically assaulted another employee at the place of employment. The Complainant submits that his dismissal followed a flawed disciplinary process which was lacking in transparency and fairness.

Evidence of the Complainant

The Complainant stated that the events which resulted in his dismissal occurred on 20 June, 2018 after he was subjected to persistent and sustained insults, taunts and provocative behaviour from a colleague (Mr. A) in the workplace. The Complainant stated that immediately prior to the incidents involving Mr. A on this date, he had been instructed by his Supervisor to carry out a job which required the use of a forklift, and there was only one such forklift available. The Complainant stated that he was obstructed from using the forklift by Mr. A who told him to “f..k down off it” when he attempted to carry out the job in question. The Complainant stated that Mr. A was not licensed to use the forklift and had no authority to interfere with him in carrying out the instructions of his Supervisor.

The Complainant stated that, in the course of carrying out those duties, on two occasions, he sought the intervention of management/supervisory personnel to give appropriate support and directions, to prevent any further obstruction by Mr. A, so that he could carry out those instructions. The Complainant submits that Mr. A continued to taunt him and called him a “rat” and a “rat bastard” on a number of occasions when he sought to obtain further directions from management to try and resolve the matter. The Complainant denies that he engaged in any physical altercation with Mr. A or that he was verbally abusive towards him when they were approaching the Supervisor’s office to seek intervention from management. The Complainant stated that he informed the Supervisor about the situation on reaching the office and that the Supervisor indicated that he would talk to the Operations Manager (Mr. B) to try and resolve the matter.  

The Complainant stated that he returned to his work station at that juncture and approx. 4/5 minutes later Mr. A walked towards him and repeated a number of times that he was a “rat” and a “rat bastard”. The Complainant stated he “lost his cool” because of the provocation and ran towards Mr. A while jumping over a stack of doors on the shop floor and squared up to him. The Complainant stated that he “swung” at Mr. A and attempted to punch him but didn’t make any contact whatsoever as Mr. A ducked and avoided the punch. The Complainant stated that Mr. A subsequently pushed him to the ground and they were then separated by a number of work colleagues who were on the shop floor and had witnessed the incident. The Complainant stated that he immediately regretted what had happened and shortly thereafter approached Mr. A and attempted to shake his hand but Mr. A told him to “f..k off”.

The Complainant stated that he was called to the office the following day (21 June, 2018) and informed by Mr. C (Assistant Plant Manager) that he was being suspended pending an investigation into the incident involving Mr. A. The Complainant stated that he didn’t get a chance to say anything at that juncture and had to collect his belongings and leave the premises. The Complainant stated that he had been employed by the Respondent for 7 years at that juncture and had an exemplary disciplinary record up to that point.

The Complainant stated that he informed Mr. B (Operations Manager) during the disciplinary hearing that the incident with Mr. A would not have occurred if there had been proper procedures or rules in place relating to use of the forklift by authorised users or if management had provided the appropriate assistance to deal with the dispute on the date in question. The Complainant also stated that he explained to Mr. B that he had been subjected to provocation by Mr. A and made him aware of the abusive language and names which Mr. A had used towards him. The Complainant stated that Mr. B failed to take account of any of these mitigating factors when taking the decision to dismiss him arising from the incident on the date in question.

Submissions

The Complainant made the following submissions in support of his claim of unfair dismissal, namely:

·         that the Respondent failed to take into account the fact that the Complainant was carrying out company directions and that in the course of which he was obstructed by Mr. A, who refused to obey a lawful and reasonable instruction by company personnel;

·         that the Respondent failed to take proper account of the admitted taunting and serious provocation to the Complainant on the date in question;

·         that the Respondent failed to have a clear procedure around the use of the forklift on the date in question, which procedure if in place, or if enforced, might have entirely prevented the incident escalating in the manner that it did;

·         that there was a repeated failure by members of management to see that this intense situation was escalating, and they had ample opportunity to resolve the escalation of the incident, by proper and timely instructions to Mr. A;

·         that the Respondent’s personnel, including Mr. B (Operations Manager), failed to heed the call for help and supporting instructions from the Complainant;

·         that Mr. B (Operations Manager) ignored a serious health and safety issue, with regard to the usage of the forklift, when this was brought to his attention;

·         that the failure on the part of Mr. B and any other members of management to ensure Mr. A would cease obstructing the Complainant’s legitimate use of the forklift, was manifestly a key consideration with regard to the circumstances here, which company personnel failed to take into account;

·         that the sanction of dismissal was excessive and disproportionate in all the circumstances: firstly, having regard to the build-up to this incident as described above; secondly, and having due regard to the fact that the Complainant, an employee of six years, did express regret for his own part in the incident (whilst denying actually physically striking Mr. A); and that the Complainant had an entirely unblemished record with the company, up to the date of this incident, and this should have been taken into account, when examining the circumstances, in order to establish why a good employee could have been so provoked as to act entirely out of character, on the date in question; that in such circumstances, it's manifestly clear that there should have been "equality of sanction", such as for example a written warning to both parties concerning their conduct on the date, which sanction might have included clear training on acceptable behaviours in the workplace, but that it would go further in the case of Mr. A, to establish strict guidelines with regard to enforcing proper forklift usage procedures by company employees, so that no such misunderstandings could arise on any future date.

It was also submitted that there were a number of procedural flaws in the application of the disciplinary process which when taken in their totality rendered the dismissal procedurally unfair, namely;

·         the Respondent did not make a full, impartial and balanced enquiry into the incidents which led to the Complainant’s dismissal.

·         Mr. B (Operations Manager) was permitted to conduct both the investigation and the subsequent decision to dismiss the Complainant. It was entirely inappropriate for Mr. B to proceed from such disciplinary enquiry to the point of actually deciding upon the dismissal of the Complainant and that such a decision for his dismissal was entirely inappropriate and unfair.

·         Mr. B failed to have due regard to his own role in the matter, and proceeded to make a decision on behalf of the Respondent to dismiss the Complainant, when it was very clear that he had a role in the decisions made on the date of the incident with Mr. A, including the instructions or lack of instructions, to Mr. A with regard to, not using the forklift, refraining from abusive and provocative behaviour towards the Complainant, and refraining from obstructing the Complainant in the course of carrying out company directions, and directions to the Complainant to desist from engagement with Mr. A.

·         Mr. B was not made available for cross-examination at the Complainant’s appeal hearing so that reasonable and appropriate enquiries could be made of him about the disciplinary process and the decision taken by him to dismiss the Complainant arising from this process.

·         That in the course of the disciplinary hearing and the meeting with Mr. B (Operations Manager) a CCTV record was produced to the Complainant when he was being interviewed, and that he was interviewed on the basis of this CCTV record, and was shortly thereafter dismissed, presumably on the basis of the said CCTV record. However, a different CCTV record was then produced at the appeal hearing, and the Respondent endeavoured to rely upon this different CCTV record in the course of the appeal without providing any adequate or proper explanation for the loss of the first CCTV record which had been used at the disciplinary hearing. While the Complainant did permit the appeal to proceed, he did this absolutely and strictly without prejudice to object to any conclusions being drawn on the basis of the use of CCTV records at all.

The Complainant relied upon the following cases in support of his position, namely: Heneghan v Western Regional Fisheries Board [1985] ILRM 225; O’Donoghue v Veterinary Council IR 398 and Turner v Pilotage Committee of Dublin Pilotage Authority (High Court Unreported, 14 June, 1998).

The Complainant was employed by the Respondent, as a door manufacturer, for approximately six years. The Respondent submits that the Complainant was dismissed for gross misconduct, by letter dated 25 July, 2018, as a result of an incident which occurred on 20 June, 2018, namely a physical assault against another employee in the workplace, the Complainant having been suspended on full pay in the interim and the investigation conducted.

It was submitted that the Respondent dealt with this situation correctly, that the Complainant had the benefit of fair procedures throughout the process and that the Respondent behaved in a reasonable and proportionate manner. On the issue of fair procedures, the Respondent submitted that:

·         The Complainant was notified of the allegation against him and was suspended on full pay while the investigation was ongoing.

·         The investigation was conducted by two independent persons within the Respondent company, at first instance.

·         The Complainant was invited to a disciplinary meeting in writing by letter dated 13 July, 2018 and afforded the opportunity to address the allegation. He was also informed, in writing, of his entitlement to be accompanied by either a fellow employee or a trade union official.

·         The matter was thoroughly investigated, and witness statements were taken from other employees.

·         The Complainant was notified of the outcome of the investigation, which was to dismiss him, and notified of his right to appeal the decision, within 7 days.

·         The Complainant exercised his right of appeal and the Respondent appointed an external, independent, appeals officer from a specialist HR and investigations firm to conduct the appeal. The claimant was legally represented at the appeal, by a Solicitor. The Appeal hearing was conducted on 8 October, 2018 and 15 October, 2018. The Independent Appeal Officer issued her report, dated 31 October, 2018, upholding the decision of the Respondent company, and finding against the claimant’s appeal. The Complainant was informed of the outcome of the appeal. A full report was produced and provided by the independent HR Consultant addressing each of the Complainant’s grounds of appeal, and detailing the reasons she was finding against him, on each ground, which was issued to the Complainant.

The Respondent submits, without prejudice to the foregoing, even in circumstances where some procedural issues surrounding a dismissal may be present, that in and of itself, does not necessarily negate the fairness of the outcome. The Respondent referred to the following decisions in support of its position on this point, namely: Elia Erian Aziz v The Midland Health Board [1995] E.L.R. 48 where the Circuit Court held that: “(3) While a disciplinary body exercising quasi-judicial functions is bound to adopt fair procedures, a bona fide defect in the procedures adopted is not necessarily fatal to the legality of the ultimate decision made. Where a defect in the procedure adopted or in the conduct of the proceedings is alleged, the applicant in order to succeed must establish that the complaint is well founded and that the defect complained of raises a reasonable possibility that an injustice may have been done. Accordingly, where there is no reasonable possibility that an injustice may have been done to the person under investigation as a result of the defect complained of, the decision is lawful and has the same effect as it would have had if no such defect had been found.”

The Respondent referred to the case of Loftus and Healy -v- An Bord Telecom (13 February 1987, unreported, HC) where the High Court stated that the it was not simply a question of whether or not the employees were deprived of a fair procedure but rather “whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish … [the basis of its dismissal] as the whole or main reason for justifying their dismissal”.

The Respondent also referred to the case of Pacelli -v- Irish Distillers (UD 57I/2001) where the Tribunal stated that: “…in determining this appeal we must look at the substance of the complaint and beyond mere defects of form. Lavery J. in O'Mahony v. Arklow UDC [1965] I.R. 710 at p. 735, held that the Court should not, and in the respectful opinion of this Tribunal, the Tribunal should not: ‘…parse and construe rules of procedure in a narrow and unreal way, looking for some flaw in procedure to invalidate a transaction where the requirements of justice and the substance of procedure have been observed.’

It was further submitted that the Respondent acted reasonably and proportionately in the circumstances of this particular case. The Respondent contends that the Complainant was guilty of gross misconduct as a result of his attempted physical assault on another employee and that the sanction of dismissal was fully justified and appropriate in the circumstances. The Respondent submits that the proportionality of the sanction of dismissal was reinforced by the fact that the nature of the work on the factory floor involves the use of dangerous equipment and tools. The Respondent further submits that it may have had adverse implications from an insurance perspective if the sanction of dismissal was not applied in the circumstances of this case.

The Respondent referred to the following decisions in support of its position on this point, namely: Looney & Co. Ltd. v Looney UD843/1984, (taken from Mary Redmond, Dismissal Law in Ireland) where the EAT said that it is their responsibility to “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.”

Barry v Precision Software Ltd. (UD 624/2005) [2006] 10 JIEC 1801, where the Employment Appeals Tribunal stated: “[I]n determining whether the dismissal was unfair or not, section 6(6) of the Unfair Dismissal Act 1977 provides that it will be for the employer to ensure that there were substantial grounds justifying the dismissal… It is not for the Tribunal to intrude into the Respondent's managerial decisions. The Tribunal has to look at what a reasonable employer would do in the circumstances. Neither is it for the Tribunal to consider what sanction it would impose. The Tribunal's function is to decide whether the employer's reaction and sanction came within the range of responses, which a reasonable employer might make”

Allied Irish Banks Plc v Brian Purcell [2012] 23 E.L.R. 189 where Linnane J. reinforced the above stating: “…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.”

It was further submitted that in circumstances where the Adjudication Officer was to find the Complainant was unfairly dismissed that it should also be held that he contributed significantly to the dismissal. The Respondent submits that an award of compensation would not be appropriate in the circumstances of this case having regard to the level of the Complainant’s contribution to the dismissal. The Respondent relied upon the following cases in support of its position on this point, namely: Mlynarski -v- Pianos Plus (UD 1294/2008); A Beauty Therapist v Beauty Clinic ADJ-00011306 and Synergy Security Solutions -v- Dusa (UDD1911).

Evidence of Mr. B (Operations Manager)

Mr. B stated that he was employed by the Respondent as Operations Manager at the material time in question and that he took the decision to dismiss the Complainant. Mr. B stated that he was informed by a Supervisor on 20 June, 2018 that there had been an incident on the shop floor involving the Complainant and Mr. A. Mr. B stated that he subsequently received a complaint from Mr. A that he had been assaulted by the Complainant arising from this incident. Mr. B stated that he contacted the company’s HR Consultants and was advised that the Complainant should be immediately suspended on full pay and that an investigation should be conducted in relation to the complaint/incident.

Mr. B stated that he instructed the Assistant Plant Manager (Mr. C) to inform the Complainant of his suspension on full pay with effect from 21 June, 2018. Mr. B stated that Mr. C and Mr. D (Production Manager) were appointed to conduct the investigation in relation to the matter. Mr. B stated that he was provided with all of the notes and witness statements arising from the investigation in the matter and that he conducted a disciplinary hearing with the Complainant. Mr. B stated that he informed the Complainant by letter dated 13 July, 2018 that the disciplinary hearing would be held on 19 July, 2018. The Complainant was informed that the purpose of the hearing was to provide him with an opportunity to provide an explanation in relation to the following incidents which were alleged to have occurred on 20 June, 2018, namely: an incident of dangerous behaviour, fighting or physical assault on the workshop floor which occurred with Mr. A and that he had engaged in rude, insulting and objectionable behaviour towards Mr. A which involved the use of bad language. Both of these incidents were alleged to have occurred within the space of 10 minutes.

Mr. B stated that the Complainant was shown CCTV footage in relation to the incidents at the disciplinary meeting from which it could be seen that the Complainant had jumped over a stack of doors on the workshop floor and attempted to punch Mr. A to the head which resulted in him falling to the floor. Mr. B stated that Mr. A got up off the floor and held the Complainant down and that they subsequently had to be separated from each other by other work colleagues. Mr. B stated that the Complainant denied that his attempted punch had actually made contact with Mr. A and that he had been provoked into losing his temper by being called “a rat” and “a rat bastard”.

Mr. B accepted that all three camera angles of the CCTV footage of the incident were inconclusive as to whether or not the Complainant had actually made contact with Mr. A but he was satisfied that he had attempted to punch him and that this constituted a physical assault. Mr. B stated that he was satisfied that the Complainant was guilty of gross misconduct arising from this incident and decided that dismissal was the appropriate sanction in the circumstances. Mr. B stated that he is no longer employed by the Respondent and had left the company before the Complainant’s appeal of the dismissal had taken place.

In cross examination, Mr. B denied that it was inappropriate for him to make the decision to the dismiss the Complainant or that he had played a central role in the dispute between the Complainant and Mr. A involving use of the forklift which had led to the incident between them on 20 June, 2018. Mr. B stated that the dispute between Mr. A and the Complainant in relation to the usage of the forklift was a separate matter from the physical assault committed by the Complainant.

Mr. B accepted that he was fully aware the Complainant had claimed that Mr. A was verbally abusive towards him and called him “a rat” and “a rat bastard” on several occasions during the course of the altercation on 20 June, 2018. Mr. A also denied that the decision had been taken to dismiss the Complainant prior to the conclusion of the disciplinary process and stated that he had considered lesser alternative sanctions other than dismissal. However, Mr. B stated that the ultimate sanction of dismissal was not disproportionate in the circumstances notwithstanding any provocation to which the Complainant may have been subjected to by Mr. A.

Evidence of Mr. C (Assistant Plant Manager)

Mr. C stated that he was employed by the Respondent as Assistant Plant Manager at the material time of the Complainant’s dismissal. Mr. C stated that he was appointed alongside Mr. D to investigate the incident involving the Complainant and Mr. A that occurred on 20 June, 2018. Mr. C stated that he wasn’t present in the factory on the date of the incident. Mr. C stated that he gave the letter of suspension to the Complainant on the instructions of Mr. B (Operations Manager) and that the Complainant sought to provide an explanation in relation to the incident upon notification of the suspension. However, Mr. C stated that he informed the Complainant that he would have an opportunity to do so during the course of the investigation.

Mr. C stated that he interviewed and took witness statements from the Complainant, Mr. A and a number of other employees in relation to the incident. Mr. C stated that he conducted meetings with the Complainant on 21 June, 2018 and 2 July, 2018 and took statements from him in relation to the matter. Mr. C stated that he submitted all of the witness statements to Mr. B (Operations Manager) on conclusion of the investigation and confirmed that he did not play any part in the decision to dismiss the Complainant.

Evidence of Mr. E (General Manager)

Mr. E stated that he was employed by the Respondent as General Manager at the material time of the Complainant’s dismissal. Mr. E stated that the Respondent appointed an independent firm of HR Consultants to conduct the Complainant’s appeal in relation to his dismissal. Mr. E stated that he attended the appeal hearing to answer questions on behalf of the Respondent because Mr. B (Operations Manager) was not available to attend as he had left the employment of the company at that juncture.

Mr. E stated that an issue was raised by the Complainant at the appeal stage in relation to the use of CCTV footage of the incident which resulted in his dismissal. Mr. E stated that there was initially three separate pieces of CCTV footage in relation to the incident which were taken from different camera angles. Mr. E stated that two of the pieces of CCTV footage were inadvertently deleted by the Respondent when transferring it from a PC hard drive during the period between the disciplinary hearing and the appeal. Mr. E stated that the Respondent had gone to great lengths to try and retrieve all three pieces of CCTV footage, but this was not possible as it had been inadvertently deleted from the system. Mr. E stated that the piece of footage which was shown to the Complainant at the disciplinary hearing was not available at the time of the appeal hearing as it had been deleted and that he was shown footage from a different camera angle at the appeal. Mr. E stated that the action of the Complainant of “throwing a fist” at Mr. A could be clearly seen from the CCTV footage of the incident.  

The relevant law

Section 6 of the Unfair Dismissals Acts, 1977 to 2015 provides:

“(1) 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.

…

(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) not relevant

(b) the conduct of the employee

(c) not relevant

(d) not relevant

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, 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 referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The combined effect of the above provisions of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established that is not the role or function of the Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent's position and circumstances, would have done so. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly[1] where it was held 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 …. “.

In the case of O'Riordan v Great Southern Hotels UD1469/03 the EAT held that: "In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

The fact of dismissal was not in dispute between the parties. The Respondent contends that the Complainant was dismissed on the grounds of gross misconduct after he had physically assaulted a colleague in the workplace and that he had also engaged in rude, objectionable or insulting behaviour with this colleague on the same date. The Respondent contends that it carried out a thorough investigation and disciplinary process in relation to this matter which fully complied with fair procedures and natural justice. The Respondent contends that it behaved in a reasonable and proportionate manner in applying the sanction of dismissal in the circumstances given the nature of the incident and the conduct of the Complainant.

The Complainant does not dispute that he was involved in an incident with a colleague in the workplace on the date in question. However, the Complainant contends that he was subjected to extreme provocation by the work colleague prior to the incident which resulted in his dismissal. The Complainant accepts that that he attempted to punch his colleague during this incident but vehemently denies that he actually made contact with the person. The Complainant contends that the Respondent failed to take into consideration a number of mitigating factors which resulted in him becoming involved in this incident with his colleague and that the sanction of dismissal was excessive and disproportionate in the circumstances. The Complainant also contends that the disciplinary process was flawed and that he was denied fair procedures in relation to the manner in which this process was conducted by the Respondent. The Complainant claims that his dismissal was both substantively and procedurally unfair.

Therefore, the two issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are (1) whether the Respondent acted reasonably in dismissing the Complainant and (2) whether the dismissal adhered to the principles of fair procedures.

In considering these issues, I note that a number of the main facts were not in dispute between the parties in relation to the incidents that occurred between the Complainant and Mr. A on 20 June, 2018 which ultimately resulted in the Complainant’s dismissal. It was common case that a dispute arose between the Complainant and Mr. A on the workshop floor in relation to the use of a forklift. This dispute initially resulted in a verbal exchange between both parties and they proceeded to seek direction from management to try and resolve the issue. It was common case that the Complainant and Mr. A approached their Supervisor and another colleague who attempted to de-escalate the dispute. The Supervisor informed both parties that he would talk to the Operations Manager (Mr. B) about the matter and the Complainant and Mr. A went back to their work stations at that juncture. It was also common case that Mr. A called the Complainant “a rat” and “a rat bastard” on more than one occasion during the course of their interaction both prior to and after the initial incident had been de-escalated. It was not in dispute that there was a further incident between the Complainant and Mr. A which occurred within a matter of 5/10 minutes thereafter.

It was also common case that the second incident involved the Complainant running towards Mr. A and jumping over a stack of doors on the workshop floor and throwing a punch at him. There was a dispute between the parties as to whether or not the Complainant’s punch actually made contact with Mr. A. The Respondent adduced evidence in relation to a statement made by Mr. A which indicates that the Complainant’s punch did make contact with his head and that he sustained a bloodshot eye as a result of the alleged physical assault. The Complainant disputes this contention and claims that the attempted punch did not make contact with Mr. A’s head. However, I note that the Complainant conceded that he had in fact thrown the punch with the intention of making contact with Mr. A. There was CCTV footage of the incident, but it was accepted by the Respondent that it was not possible to definitively conclude from this footage if the Complainant’s punch had actually made contact with Mr. A. It was also common case that the Complainant and Mr. A subsequently fell to the floor and proceeded to grapple with each until they were separated by a number of work colleagues.

Having regard to the evidence adduced, I am satisfied that the Respondent conducted an investigation and disciplinary process in relation to this matter after Mr. A made a complaint that he had been subjected to a physical assault by the Complainant. I am further satisfied that the above facts were established by the Respondent during the course of this disciplinary process having obtained statements from the Complainant, Mr. A and a number of other work colleagues who had witnessed the incidents on the material date in question. I am satisfied that the statements taken from a number of colleagues who had witnessed the incidents established that the Complainant had confronted Mr. A in an aggressive and dangerous manner and at the very least had attempted to assault him by throwing a punch in the direction of his head.

I note that it is clearly stated in the Respondent’s Employee Handbook that “dangerous behaviour, fighting and physical assault” constitute examples of gross misconduct which are liable to be punished by summary dismissal. I am further satisfied that the Complainant been provided with a copy of the Employee Handbook during his period of employment and that he was aware of the Respondent’s policy in relation to gross misconduct. The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes “gross misconduct” justifying summary dismissal and must be something very serious indeed, perhaps criminal or quasi-criminal in nature. In the circumstances, I am satisfied that the Respondent had reasonable grounds to believe that the Complainant had engaged in behaviour in the workplace arising from the incident that occurred with Mr. A which fell into the aformentioned category of “dangerous behaviour, fighting and physical assault” on the material date in question and that this behaviour amounted to gross misconduct.

In considering the fairness or otherwise of the dismissal, I am also obliged to consider if the sanction of dismissal was proportionate to the alleged gross misconduct the circumstances. The Employment Appeals Tribunal held in the case of Bigaignon v Powerteam Electrical Services Ltd [2012] 23 E.L.R.195 that: “The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair …… The precise terms of the test to be applied as to whether the sanction was reasonable was set out in Noritake (Ireland) Limited v Kenna UD88/1983 where the Tribunal considered the matter in the light of three questions: 1. Did the company believe that the employee mis-conducted himself as alleged? If so, 2. Did the company have reasonable grounds to sustain that belief? If so, 3. Was the penalty of dismissal proportionate to the alleged misconduct?”.

On the question of the proportionality of the sanction, I note that the Complainant has argued that there were several mitigating factors which the Respondent failed to take into account and that a lesser sanction would have been more appropriate in the circumstances. These mitigating factors include the contention that the Complainant had been subjected to severe provocation by Mr. A, that he had a previously unblemished disciplinary record during his 7 years of service, that he was operating under management instructions when the dispute arose with Mr. A over the use of the forklift, that Mr. A had no authorisation to use the said forklift and that management failed to take measures to de-escalate the dispute with Mr. A. The Respondent adduced evidence that these mitigating factors were taken into consideration when deciding upon the appropriate sanction, but it was considered that dismissal was appropriate given the gravity and seriousness of the Complainant’s behaviour on the date in question.

Having regard to the totality of the evidence adduced, I am satisfied that the Respondent had been presented with facts at the material time the decision was taken to dismiss the Complainant that he had engaged in conduct of a highly aggressive and dangerous nature which resulted in the attempted physical assault of Mr. A. It is undeniable that this type of violent, aggressive and dangerous behaviour is totally unacceptable in the workplace and could have potentially resulted in very serious and grave consequences to both the Complainant and/or Mr. A from a health and safety perspective. It is clear that the potentially grave and serious consequences which could have occurred as a result of this type of reprehensible conduct was further compounded by the fact that the Respondent operates in an environment which involves the use of dangerous machinery and equipment. Therefore, on balance, and notwithstanding the mitigating factors put forward on behalf of the Complainant, I am satisfied that the application of a sanction of dismissal was within the range of reasonable responses available to the Respondent having regard to the gravity of the Complainant’s actions and behaviour during the incident in question. Accordingly, I find that the sanction of dismissal was proportionate in the circumstances of the present case.

There is one further issue of a procedural nature that arose during the course of the hearing which I must address at this stage in the interests of completeness. The Respondent sought leave to introduce CCTV footage of the incident involving the Complainant and Mr. A that occurred on 20 June, 2018 by way of evidence at the oral hearing. The Respondent contended that this footage showed the interaction between the Complainant and Mr. A during the course of the incident that occurred on the aforementioned date and that it would show that the Complainant had attempted to punch Mr. A. The Complainant objected to the introduction and showing of this CCTV footage on the basis that the CCTV footage which the Respondent wished to introduce at the hearing was different to that which was shown to the Complainant and relied upon by the Respondent at the disciplinary hearing. The Complainant argued that the introduction of this CCTV footage would be prejudicial to his complaint under the Acts. The Respondent clarified at the oral hearing that the original CCTV footage which had been shown to the Complainant at the disciplinary hearing had been inadvertently erased prior to his appeal hearing and that it had not been possible to retrieve this footage despite extensive efforts to do so. The Respondent contended that the CCTV footage which it sought to introduce at the oral hearing was the same footage but taken from a different camera angle than that which had been shown to the Complainant at the disciplinary hearing.

Having considered submissions from the parties on the admissibility or otherwise of the CCTV footage, I informed the parties that I would reserve my position on this matter and proceed to hear the oral evidence from all witnesses in its entirety before deciding whether or not to allow the said CCTV footage to be admitted into evidence. I further informed the parties that I would reconvene the oral hearing if I subsequently deemed it necessary to view the said CCTV footage. Having considered the totality of the oral evidence, I note that it was confirmed by the Respondent’s witness, Mr. B (Operations Manager), in evidence that the CCTV footage of the incident (which the Respondent sought to introduce into evidence) was inconclusive as to whether or not the Complainant actually made contact with Mr. A during the course of their interaction. In the circumstances, I am satisfied that the CCTV footage is of little or no evidential value given that the Complainant did not dispute that he attempted to punch Mr. A during the incident in question. Accordingly, I have decided not to accede to the Respondent’s request to admit the said CCTV footage into evidence.

The next issue which I must consider relates to the procedural fairness or otherwise of the Complainant’s dismissal. The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[2] 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, which include that:

1.       the details of the allegations or complaints be put to the employee concerned;

2.       the employee concerned be given the opportunity to respond fully to any such allegations or complaints;

3.       the employee concerned is given the opportunity to avail of representation; and

4.       the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

I have carefully considered the manner in which the investigation and disciplinary process was conducted in the present case and I am satisfied that there were a number of aspects of the process which did not meet the required standards of procedural fairness.

The key area of procedural unfairness that I have found in relation to the process relates to the multiplicity of roles and involvement undertaken by Mr. B (Operations Manager) throughout the entirety of the process. Having regard to the evidence adduced, I am satisfied that Mr. B had a significant and integral role in all stages of the investigation/disciplinary process from its instigation until the decision was taken to dismiss the Complainant following the disciplinary hearing. In this regard, I have taken cognizance of the fact that Mr. B was present in the workplace at the material time of the incidents involving the Complainant and Mr. A on 20 June, 2018. It is clear that Mr. B was in the process of discussing the initial incident with the Complainant’s Supervisor when the second incident occurred which resulted in the attempted physical assault and that Mr. B viewed this incident via the CCTV camera in his office as the events unfolded. I am satisfied that this fact could have potentially cast doubts on Mr. B’s ability to approach the task of disciplinary decision maker with an open and objective mind.

I note that Mr. B took the decision to suspend the Complainant on full pay pending an investigation into the matter albeit that this decision was communicated to him by Mr. C (Assistant Plant Manager). I accept that Mr. C and Mr. D (Production Manager) were appointed by Mr. B to carry out the investigation. However, it would appear from the evidence adduced that the extent of Mr. C’s and Mr. D’s involvement in the investigation was limited to conducting interviews with the relevant witnesses and the submission of their statements to Mr. B for further consideration as part of the investigation/disciplinary process. It was not in dispute that Mr. B also conducted the disciplinary hearing and that he ultimately took the decision to dismiss the Complainant. In the circumstances, I am satisfied that Mr. B played a significant role in both the investigation and disciplinary process and that there was an insufficient degree of separation between both stages such as to raise legitimate concerns in relation to the overall fairness of the process. I am cognizant of the fact that in a small workforce it may not be possible to separate the investigator from the decision maker. However, in the instant case, I am satisfied that it would have been possible, and prudent of the Respondent, to separate the two roles.

I also have further concerns in relation to the procedural fairness of a number of other aspects of the disciplinary process including the manner in which the CCTV footage of the incidents on 20 June, 2018 was used by the Respondent during the course of the disciplinary and appeal hearings. It was common case that the CCTV footage which was shown to the Complainant during the disciplinary hearing was different to that which was shown to him during the appeal hearing. I have also taken cognizance of the inequitable treatment of the Complainant in comparison to that afforded to Mr. A in relation to the imposition of suspension pending the outcome of the disciplinary process and I note that the latter was not suspended for the duration of the disciplinary process.

Having regard to the totality of the evidence adduced, I am satisfied that the aforementioned procedural deficiencies which occurred throughout the disciplinary process, when taken together, has fatally imperilled the fairness of the Complainant’s dismissal. However, I also find that the Complainant, through his behaviour contributed significantly to his dismissal and this has been taken into account in considering redress.

In the circumstances, I find that the Complainant’s dismissal was procedurally unfair within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Acts is well founded.

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded.

I find that the appropriate redress in all the circumstances of the present case is compensation. In assessing the level of compensation to be awarded I note that the Complainant was being paid a net weekly wage of €442.05 by the Respondent at the material time of his dismissal. The Complainant adduced evidence that he has obtained three separate periods of temporary employment following his dismissal (the most recent period of employment terminated on 1 January, 2020) in respect of which he has earned a total net amount of €9,861.00. I have received submissions from the parties in relation to the Complainant’s loss arising from his dismissal and his efforts to mitigate those losses, of which I have taken into account in deciding the quantum of the award of compensation.

I find that the Complainant contributed significantly to his dismissal and I determine that, through his conduct, was 70% responsible for his dismissal. Having regard to this fact, I deem that an award of €7,500.00 to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss which I deem attributable to future loss of earnings arising from his dismissal.

Unfair Dismissals Acts, 1977 – 2015 - Section 6(4) – Gross Misconduct – Dismissal Procedurally Unfair - Complaint Well Founded – Compensation Awarded