UDD2013

This is an appeal by Mr Darius Leonavicius (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00017379, dated 30 May 2019) under the Unfair Dismissals Act 1977 (‘the Act’). Notice of Appeal was received by the Court on 10 July 2019. The Court heard the appeal in Dublin on 11 February 2020. Evidence was given by two witnesses on behalf of the Respondent: Mr Noel Kealy, who conducted an investigation into certain allegations raised against the Complainant, and Mr Brian Williams, who conducted the disciplinary hearing. The Complaint also gave evidence.

The Factual Matrix

The Complainant was employed by TNT Express (Ireland) Limited (‘the Respondent’) as a warehouse loading bay operator for approximately twelve years until he was summarily dismissed for gross misconduct on 3 July 2018. The Complainant had a clean disciplinary record prior to the incidents that culminated in his dismissal.

On Friday 27 April 2018, the Complainant was working an evening shift from 5.00 p.m. to 1.00 a.m. An exchange took place at approximately 8.30 pm between the Complainant and his supervisor in the course of which the Complainant allegedly threw a box of freight at the supervisor, hitting him on the shin with it. Although the supervisor proceeded to walk away from the incident, the Complainant followed him and engaged in an aggressive manner with him. The incident was captured on the Respondent’s CCTV system.

The supervisor sent an email later that evening to three members of the management team to complain about the incident. He stated that he had felt threatened by what had taken place. The following Monday morning – 30 April 2018 – Mr Noel Kealy, Depot Manager, was appointed to carry out an investigation into the incident. Mr Kealy met with the supervisor on his arrival for his shift later that day to verify the details of the complaint. He also viewed the relevant CCTV footage. He made a decision based on the information to hand to suspend the Complainant on full pay pending the completion of the investigation. It appears Mr Kealy was also concerned lest there be a repeat or an escalation of the alleged incident.

Mr Kealy proceeded with his investigation in the course of which he interviewed and took signed statements from colleagues who were on-site on the evening in question and who may have witnessed the exchange between the supervisor and the Complainant. He held a meeting with the Complainant on 18 May 2018 to allow the Complainant to respond to the allegations. During that meeting, at which the Complainant was not represented, Mr Kealy also informed him that a second alleged incident involving the Complainant and his supervisor on 17 April 2018 had come to light during the investigation. The investigator reviewed the CCTV footage from both incidents with the Complainant and gave him on opportunity to comment on it and to explain what had taken place on both occasions from his perspective. He furnished the Complainant with a copy of the notes of the meeting subsequently by email.

Mr Kealy prepared a detailed nine-page report setting out the procedure he had followed in conducting the investigation, the information he had gathered (including signed witness statements), the findings of fact he had made, his conclusions and his recommendation. Mr Kealy’s recommendation was that the Complainant go forward to a disciplinary hearing to answer the following allegations of gross misconduct:

• 
  1.“Violence, actual or threatened against another person/employee.

  2.Threatening and aggressive behaviour against another person/employee.

  3.Bullying and harassment / intimidation of another person / employee.

  4.Wilful neglect or damage to customer property.”

The disciplinary hearing took place on 22 June. As noted previously, it was conducted by Mr Brian Williams, a Depot Manager with the Respondent. The Complainant was represented by an experienced trade union official. Another somewhat unusual feature of the procedures followed in this case is that the investigator, Mr Kealy, also attended the disciplinary meeting in order to read his report to the meeting. Mr Kealy told the Court in evidence that he played no further role in this disciplinary process and had no input into the decision to impose a disciplinary sanction on the Complainant. Mr Williams reviewed the CCTV footage during the course of the disciplinary meeting. He also considered a number of the witness statements that had been compiled by Mr Kealy during the investigation.

Mr Williams took some time to arrive at a decision. He told the Court that he knew both the Complainant and his supervisor and was, therefore, very conscious of the impact of the process on them and on the workforce in general. However, he ultimately determined that summary dismissal was the appropriate sanction because he believed the Complainant had engaged in unacceptable behaviour and had “gone too far”. Mr Williams told the Court that he had considered imposing the lesser sanction of a final written warning on the Complainant but he felt that such a sanction would not have been consistent with his duty to the supervisor, the workforce and the company. He was very conscious, he said, that the supervisor had felt threatened by the Complainant’s conduct and, in Mr Williams’s view, nobody should have to come to work in those circumstances. Mr Williams also stated that he did not sense that the Complainant was in any way remorseful for his actions.

Mr Williams communicated the outcome of the disciplinary hearing to the Complainant in a detailed letter dated 3 July 2018 in which he wrote,inter alia:

• 
  “Following lengthy consideration, I have decided to summarily dismiss you for gross misconduct for the following reasons:
  • 
    •Having considered the evidence and the statements provided by the witnesses I am in no doubt that you displayed both verbal and physical aggressive behaviour on more than one occasion to a supervisor in the course of his rightful duties.

    •On 2 separate occasions (17/04/18 & 27/04/18) you chose to act with violent behaviour towards your same supervisor. We have a duty of care to our employees and I find your actions to be completely unacceptable and without any rational justification.

    •You have not reasonably offered any reason or mitigating circumstance for your behaviour and you did not refute any statements or evidence presented against you.

    •You failed to offer any remorse for your actions and behaviour, which was very disappointing and led me to believe that there would be no improvement in your behaviour in the future.

    •The manner in which you chose to throw the customers consignment to the floor towards your colleague demonstrated a disregard for his safety. Secondly, by throwing the customers consignment in that manner showed a clear and apparent disregard for the safekeeping of the customer’s goods. We are in the service industry and the careful handling of our customer’s (sic) freight is vital and the throwing of freight can never be tolerated.”

  
  

  Mr Williams also advised the Complainant of his right of appeal. The Complainant chose to avail himself of that right. An appeal hearing took place on 20 July 2018 chaired by Mr Ray O’Connor, Service Quality Operations Manager. The Complainant was represented by a trade union advocate from SIPTU’s Workers’ Rights Centre. Mr O’Connor, having considered the Complainant’s appeal, decided to uphold the original sanction imposed on the Complainant.

  Under the procedures agreed between SIPTU and the Respondent, the Complainant was entitled to a further appeal stage which he also availed himself of. That second appeal hearing took place on 6 September 2018. It was chaired by Mr Dermot O’Kelly, Operations Director. The Complainant was again represented by a trade union advocate from SIPTU’s Workers’ Rights Centre. Mr O’Kelly issued his determination by letter dated 10 September 2018 in which he stated that he had found the sanction of dismissal was proportionate in the circumstances.

  The Complainant gave evidence to the Court about his financial loss and his efforts to mitigate loss. As of the date of his dismissal, he was paid €990.66 per fortnight/€495.33 per week net by the Respondent. The Complainant did not secure alternative employment until early September 2019. He is paid €650.00 per week net (including basic pay and travel and subsistence) in his new job. The Complainant did not submit any documentation to the Court in evidence of his efforts to mitigate loss. He told the Court that he fully expected to be successful at the appeal stage of the disciplinary process and, therefore, did not seriously attempt to find a new job prior to the conclusion of his second appeal in September 2018. Thereafter, he decided to upskill and managed to enrol himself on a driver training course that ran from mid-April 2019 to mid-August 2019, which would qualify him for a Class C licence. He told the Court that he had dropped copies of hiscurriculum vitaeinto a number of factories and warehouses in late 2018/ early 2019 but didn’t earnestly pursue any positions as his preference was to be available for, and to complete, the driver training course.

  Discussion and Decision

  Having considered in detail the evidence of the witnesses, the Court is satisfied that the Respondent had substantial grounds to justify its decision to terminate the Complainant’s employment. The Respondent’s decision to do so was arrived at following a thorough investigation and a fair and considered disciplinary process conducted substantially in accordance with the terms of a disciplinary procedure agreed between the Respondent and SIPTU and which afforded the Complainant the benefits of fair procedures and natural justice. Furthermore, as provided for in that procedure, the Complainant had the benefit of a two-stage appeals process. The Complainant was accompanied at the disciplinary stage by an experienced trade union official and at the appeals stages by an experienced trade union advocate. Finally, having regard to the judgment of Noonan J inThe Governor and the Company of the Bank of Ireland v James Reilly[2015] IEHC 241, the Court accepts the Respondent’s submission that the sanction of summary dismissal imposed on the Complainant was within the band of reasonable responses open to it in the circumstances.

  The appeal fails and the decision of the Adjudication Officer is upheld.