Complainant

Respondent

Anonymised Parties

A Warehouse Team Leader

A Fresh Foods Business

Representatives

Bernard Stobie, Solicitor

Conor O'Gorman, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017020-001

24/01/2018

The complainant is a Lithuanian national and he commenced work with the respondent as a general operative on April 18th 2005. He was dismissed on August 2nd 2017 for assaulting one of his team members.   He claims that his dismissal was unfair and that his colleague’s conduct was the cause of the assault.   At the time of his dismissal, he was a warehouse team-leader in the packing area and he supervised 15 to 20 general operatives.

Chronology of Events Leading to the Complainant’s Dismissal

On July 16th 2017 around 9.30pm, a shift manager sent a report to the HR Department outlining an incident that occurred earlier that day when the complainant hit one of the operatives on his team in the head and face. In this document, I will refer to this operative as “Pavel.”

An investigation meeting was held on July 19th, chaired by a production category manager.   At the meeting, the complainant explained the background to his assault on Pavel. He said that Pavel was processing punnets of fruit that were underweight and overweight and that he had spoken to him about this, but he continued to send incorrect weighted punnets down the line. The complainant said that he went to speak to the shift manager who instructed him to send Pavel to the office. The complainant returned to the line and told Pavel to go to the shift manager’s office. He said that Pavel responded by throwing product on the ground and becoming aggressive and verbally abusive. In his complaint form, the complainant said that Pavel called him an idiot and “bad names.” He said that Pavel was in his personal space and that he felt that “he is going to hit me so I hit him first.   I claim it was in self-defence.   He effectively provoked me.”   At the meeting, the complainant said that Pavel was trying to provoke him by not completing paperwork correctly and by eating fruit while he was working. He claimed that he had ongoing problems with Pavel and that he had previously reported his behaviour to the shift manager.

The production category manager concluded that the complainant’s behaviour when he hit Pavel amounted to gross misconduct, and a disciplinary hearing was held on July 28th. At this meeting, which was chaired by an operations manager, the complainant agreed that his behaviour towards his team member was unacceptable, but he claimed that he had been provoked.

On August 2nd 2017, the complainant received a letter confirming that the operations manager concluded that the assault on Pavel was gross misconduct and he was dismissed.   Following an appeal meeting on August 15th, the decision to dismiss the complainant was upheld by the company’s operations director.

It is the respondent’s case that the complainant was dismissed because of his misconduct. Following a full investigation and a disciplinary meeting, the complainant was found to have physically assaulted another employee.   They argue that his dismissal was not unfair, as it arose from his conduct, and was in accordance with section 6(4)(b) of the Unfair Dismissals Act 1977. The complainant did not deny that he assaulted his colleague, not did he deny that he was aware that his actions constituted gross misconduct.

Legal Precedents

For the respondent, Mr O’Gorman referred to the following precedents in support of the company’s position:

Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241

In his decision on this case, considering the issue of the response of a reasonable employer, Mr Justice Noonan referred to the case of Allied Irish Banks v Purcell [2012] 23 ELR 189, where Ms Justice Linnane quoted from the findings in British Leyland UK Ltd v Swift [1981] IRLR 91:

“The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases, there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.

“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 O’Gorman argued that violence in the workplace falls under the “band of reasonableness” test set out above. He said that the respondent has a zero tolerance attitude to violence at work.

Transdev Dublin Light Rail Limited v Adil Shafiq UDD1847

In this case, a ticket inspector was dismissed when he reacted violently to racist abuse from a passenger. The Labour Court found that the dismissal was not unfair. Mr O’Gorman argued that the circumstances of the complainant’s case are reflected to a degree by this precedent, although the Court found that, even in the context of racist abuse, Mr Shafiq’s violent reaction was unacceptable.

Conclusion of the Respondent’s Case

It is the respondent’s case that the complainant was afforded his right to natural justice and fair procedures throughout the process that led to his dismissal. He was always aware of the allegations against him, he was given an opportunity to respond and to set out is own version of what occurred. The issue was fully investigated before a decision was made and the complainant was represented at all stages of the disciplinary process. The complainant’s representations were considered and the decision to dismiss him was an impartial determination.   Finally, he was given the opportunity to appeal.

Mr O’Gorman referred to the respondent’s disciplinary procedure which provides that “physical assault on another employee” is considered to be gross misconduct and the response to this conduct is dismissal.   On this basis, the employer’s position is that the dismissal of the complainant was not unfair.

On the form he submitted to the WRC outlining his complaint, the complainant said that the night before the incident on August 16th 2017, someone tried to steal his car. The next day, he said that he “did not sleep from 3am and came to work under pressure and felt much stressed...”   He said that his colleague, Pavel “constantly caused problems with workflow that day by ignoring rules, procedures and instructions I was giving him.” He claimed that Pavel did not listen to him and that he felt helpless. When he reported Pavel to the shift manager, the complainant was told to send him to the office and when he approached him, the complainant said that Pavel became abusive and provoked him into hitting him. He said that he felt he had to defend himself and that he realised immediately that what he did was wrong.

The complainant’s position is that before this incident occurred, Pavel had insulted his daughter and that he threatened to damage his car and puncture his tyres. He said that he had problems with Pavel’s performance for the previous year and that he reported this to managers numerous times. He said that he felt helpless because in his view, he got no support from the managers.

In 12 years working with the respondent, the complainant said that he worked very hard and made it to the role of team leader. On the day in question, when he hit Pavel, he was afraid that Pavel was about to strike him and he acted in self-defence.  

Evidence of the Complainant

In response to questions from Mr Stobie, the complainant said that before the incident on August 16th 2017, Pavel had been smoking at work and that he had informed a manager. When he returned to the warehouse, the complainant said that he assigned Pavel to a punnet machine and he told him what to do. The complainant then went to print orders and when he returned, he saw that Pavel was not checking the punnet weights which, he said, was a very important part of his job. He said that the effect of not checking the weights impacts on him and he has to sort it out afterwards. He said that a form must be filled in every half an hour, and that Pavel didn’t do this either.

The complainant said he reported Pavel’s behaviour to the shift manager who told him to explain to him the importance of doing the job correctly. The complainant said however, that Pavel should know what to do.   He spoke to Pavel a second time, but he was eating fruit and he ignored him. The complainant said that he checked four boxes of fruit and the weights were all wrong.

During the disciplinary investigation and appeal, the complainant explained what happened before he hit Pavel. He said that he told the shift manager that Pavel wasn’t doing his job and that the complainant was responsible for the problems that resulted from this. Mr Stobie asked the complainant why he hit Pavel and he said that when he told Pavel to go to the manager’s office, he began to insult him. He said that Pavel “put his hands in front of me and made gestures in front of my face.” He said that he felt threatened. He said that Pavel called him an idiot, and some animal, maybe a pig, and that he “had a fighting tone.”

At the meetings to investigate the assault, the complainant said that he told the managers about Pavel’s behaviour and about him saying that he would scratch his car.   He said that Pavel knows where he lives and that he had been insulting towards his daughter.

In response to my questions, the complainant said that Pavel had been on his team for around 12 or 18 months and that the problems with him started a few months before he was dismissed. He said that it started with small things and then Pavel started acting like a manager.  

Procedural Issues

On behalf of the complainant, Mr Stobie argued that the respondent’s policy of allowing people at risk of dismissal to be represented by a work colleague is inadequate from the perspective of “equality of arms.” He claimed that the company had the benefit of legal advice when deciding how to deal with the case and he argued that the complainant should have been offered access to a legal representative.

Mr Stobie also complained that the CCTV footage is silent and that we have no evidence of what was said between the complainant and Pavel before the assault occurred. He also complained that the company did not respond adequately to the complaints about Pavel’s behaviour.

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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The respondent has referred to Section 6(4)(b) of the Act which 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.”

At the hearing of this complaint, I viewed the CCTV footage of the incident that resulted in the complainant’s dismissal. The footage shows the complainant hitting his colleague with two punches in quick succession, after which some employees moved in to separate the two. It is apparent that the conduct which resulted in his dismissal is the fact that the complainant assaulted a member of his team on the packing line. The respondent’s position is that physical assault of an employee comes under the heading of gross misconduct and the response to gross misconduct is dismissal.  

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

As has been established by the EAT in many instances, and specifically in the case of British Leyland UK Ltd v Swift [1981] IRLR 91 which was referred to by Ms Justice Linnane in her decision on the Allied Irish Banks v Purcell case, it is not for me to establish the guilt or innocence of the complainant. My job is to determine if it was reasonable for the respondent to conclude that the complainant’s assault of his colleague was gross misconduct and, as set out in their letter of August 2nd 2017, “the only fair and proportionate sanction” was dismissal.

An exploration of the facts relied upon by the respondent in reaching the decision to dismiss provides the basis for the test of reasonableness. The facts are:

On July 16th 2017, around 6.00pm, when he instructed his team member to go the shift manager’s office, the team member became angry and started shouting at him and called him an idiot. The complainant responded by hitting him twice in the face. An investigation ensued, followed by a disciplinary hearing.   The complainant explained that he was provoked by the team member and that he acted in self-defence.   However, the respondent found that his actions amounted to gross misconduct and he was dismissed on August 2nd 2017.

I have listened to the evidence of the complainant and I have considered what he said was the cause of him hitting his colleague. It is my view that, in his role as a team leader, his action of striking his team member is inexcusable, even if he felt that he was being provoked. As a team leader with 10 years of experience in the role, he must have had to deal with insubordination in the past and I find that his response to Pavel’s behaviour was aggressive, uncontrolled and unacceptable. It is my view that the respondent’s conclusion that the complainant’s behaviour amounted to gross misconduct was that of a reasonable employer.

Was the Process Fair?

Mr Stobie submitted that the complainant was unable to offer a reasonable defence to his actions because he was represented by a work colleague. The respondent’s disciplinary procedure provides that employees may be represented by a colleague of their choice; however, Mr O’Gorman said that the complainant did not ask to have anyone else as his representative, and he did not say that he wanted to get legal advice.

Having reviewed the notes of the investigation meeting and the disciplinary hearing that were submitted in evidence, I find that the complainant represented himself well and argued cogently against his employer’s finding that his behaviour should be considered as gross misconduct. The complainant immediately apologised for his behaviour, and this is to his credit. He then put forward an explanation for what he did, claiming that Pavel’s behaviour over the previous months culminated in what was for him, a “last straw” event on July 16th 2017. From a procedural perspective, I find that the respondent’s policy to allow the complainant to be represented by a colleague was not unfair in this case.   The facts of the matter were not in dispute and, due to the clear evidence of assault on a work colleague, it is my view that the outcome from the disciplinary hearing would not have been any different if the complainant had been represented by a solicitor.

Conclusion

In conclusion, I would like to refer to the High Court appeal of James Reilly against the Bank of Ireland, which was cited by Mr O’Gorman. In his concluding remarks on this case, Mr Justice Noonan observed that:

“An assessment of the reasonableness and proportionality of the employer’s response must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee.”

There can be no doubt that the impact on the complainant of the termination of his employment is severe. Since he was dismissed in August 2017, up to the date of the hearing in March 2019, he said that he had not worked and that he was relying on social welfare.   He said that he found it difficult to get a job because he had been dismissed. He has decided to change his career and he is taking a course to be a truck driver and a mechanic.

I acknowledge the severity of the effect of the complainant’s dismissal on him. I have to conclude however, that having regard to the impact on him, measured against the impact of his conduct on employees and on his employer, the decision to dismiss the complainant was reasonable and in proportion to the seriousness of his conduct.

I have found that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate and I also find that the process was fair.   On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded and does not succeed.

Dismissal, gross misconduct