Complainant

Respondent

Anonymised Parties

A Truck Driver

A Sustainable   Refuse Company

Representatives

Shane Healy, Healy O'Connor Solicitors

 Jason Murray, BL. instructed by Rory Muldowney , Solicitor.

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-00035182-001

11/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00035182-002

11/03/2020

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On March 11, 2020, the Complainant, through his Solicitor submitted a claim for unfair dismissal to the WRC. He also submitted a claim for payment of minimum notice via the Payment of Wages Act, 1991. Both claims are denied by the Respondent.

This case was scheduled for hearing on February 2,2021. An earlier scheduled hearing of October 2020 had been cancelled.

 On that day, all parties were assembled remotely, complete with witnesses. However, the complainant was unable to guarantee his visual presentation on screen. This created a procedural impediment to a fair progression of the case. I agreed to an adjournment on the basis that prior to resumption the parties would agree booklets in advance. The Complainant was also advised to ensure his visual accessibility. All parties were to observe social distancing. A table of loss and mitigation was to be submitted.

The case resumed by virtual platform on 12 March 2021. Both parties made extensive written submissions. All parties were visible on the remote platform.

The Complainant was represented by Shane Healy, Solicitor and the Respondent by Jason Murray, BL instructed by Rory Muldowney, Solicitor.

The Respondent presented 4 witnesses. The Complainant presented one witness.

The Respondent operates a waste management company and has a large workforce of over 2,500 people.

Counsel for the respondent outlined that the Complainant had been employed as a driver from 23 October 2017 until his dismissal for gross misconduct on 3 February 2020. He detailed that an incident had arisen on site during 26 November 2019, where the complainant, during his work had assaulted his Line Manager, Mr A.

On arrival back to the work yard, the complainant had identified issues with the window wipers of his truck and was directed to the onsite garage by Mr A. The Complainant did not accept this direction and queried why the repair could not be addressed from the parked position. Time passed, and the complainant became very irate. As Mr A turned to walk away, the complainant grabbed the arm of Mr as jacket and “pulled him back with some force” Mr A told him plainly not to touch him again. The Complainant followed up with an apology, after 30 minutes.

The Complainant was then off work 26 November 26, 2019 – 22 January 2020.

Mr A made an allegation of inappropriate behaviour against the complainant.

The Respondent wrote to the Complainant on 23 January 2020 confirming his suspension from work “pending investigation into the following allegations of gross misconduct

1 26 November assault

2 Refusal to take an order from line manager to take truck to garage

3 absent without leave

4 verbal abuse of line manager “

The matter was duly investigated by Mr B and the complainant admitted to the assault. It was the Company position that they had applied fair procedures and dismissal was a reasonable action following the complainant’s admission.

The appeal which followed on 19 February 2020, carried an “astonishing” departure by the complainant when he denied the assault. On 2 March 2020, the Complainants dismissal was confirmed, and the internal process deemed closed. Counsel pointed to two competing narratives emerging in the complainant’s story as the case progressed to hearing.

Counsel confirmed that Mr A and Mr B had compiled handwritten notes, while a scribe had been available for the Appeal hearing.

Counsel requested that consideration be given to the process followed by the respondent and whether it was fair? The process had not been contested by the complainant, who had submitted that he was unhappy with his dismissal rather than a claim directed at unfair process.

The Respondent had followed fair procedures and had complied with the respondent’s obligations under the Unfair Dismissals Act 1977 -2015. The Respondent had structured the process around independent stages conducted by separate people and the complainant was provided with an opportunity to be heard. The Company had followed its own Disciplinary Policy in that regard.

In relying on AIB PLC v Brian Purcell [2012] 23 ELR 189, Counsel outlined the recognised test for assessing reasonableness of the employer when a decision to dismiss an employee is made. He went on to argue that the dismissal in the instant case was wholly reasonable, as the complainant by had by his own admission had breached trust and confidence with his employer.

In reference to the seminal High Court case of Frizelle v New Ross Credit Union ltd [1997] IEHC 137, Counsel outlined the principles to be applied during a disciplinary leading to dismissal and argued that the Respondent complied fully with those principles.

Counsel sought that the claim for unfair dismissal be dismissed.

Evidence of Mr A, Transport Supervisor

Mr A was covering for the Transport Managers leave. His daily role was to address truck related problems. On November 26, 2019, the complainant returned to the base between 4.30- and 5 pm. He had issues with his truck. Mr A was actively engaged in checking other trucks when the complainant told him of the problem with the wiper. He told him to bring the truck over to the garage for repair. Mr A stated that it would have taken him 90 seconds to drive to the garage on site to get it fixed. He asked the complainant why he hadn’t brought it in?

Mr A observed the complainant got out of the truck and was talking to Mr E, another employee.

 Mr A said that he had 38 trucks to check. He submitted that the complainant pulled him back by the upper part of his arm, almost a complete circle, where he ended up nearly facing him. He used expletives as was unhappy with this unprecedented treatment. He told the complainant to never touch him again.

Sometime later, the complainant apologised and said that he should have brought the truck over. The matter was left at that.

Mr A made a verbal report to X and Y. He wanted him to note the occurrence as he wasn’t happy. He knew there would be an investigation. Y then left the business. Mr C approached him in January and asked him to complete a statement on the event. He acknowledged that there had been issues with the complainants leave, but he had passed that onto Y. Mr A had time off to attend to a medical condition.

During cross examination, Mr A confirmed that he had commenced work at 8 am. The complainant normally started between 5 and 7 am. It rained during 26 November. Mr A accepted that he was aware of the faulty wiper from the what’s app message system. He acknowledged the complainant came across as frustrated. The truck needed to be   available for the next morning.

Mr A re-affirmed that he had been pulled unawares by his jacketed right arm with enough force to turn him around. Mr A said he was upset, used colourful language and told the complainant that he would report him to the line manager. He was not aware that it could be perceived as an assault and agreed to “move on” He reported the matter the next day to Y as part of his role. He did not involve the Gardai.

Mr A confirmed that a delay followed as Y left the business. The Complainant had refused to take an order by not bringing the truck over for repairs. He accepted that abused was not listed in his statement dated January 27.

Mr A confirmed that Y had made a written report in the diary. He was unclear on the content. Mr A clarified that an incident form or Health and Safety Authority notification were not in being. He did not make a statement concurrent with the event. He had agreed to move on.

Mr A did not clarify a basis for his certainty that an investigation would follow. He had not received feedback to his report following Ys departure until Mr M addressed the situation in January 2020.

Mr A confirmed that both he and the Complainant were 5 foot 7 inches in height and no history of animus existed. He confirmed that he had accepted the complainant’s apology.

Evidence of Mr C. General Manager

Mr C was appointed General Manager on 6 January 2020 but is no longer with the Company. On his commencement in role, he asked Mr A to bring him up to speed on the drivers at the base.

He learned that the complainant was on leave and there was an issue with that leave. Other issues were raised in conversation with Mr A which warranted investigation. He had no prior involvement with the complainant.

Mr C decided that the complainant should be suspended due the assault of November 26.

He looked to interview the complainant. Mr A and Mr M, the mobile mechanic signed their statements in front of Mr C.

  The Complainant was provided with statements from Mr A and Mr M. He was addressed on the allegations and he confirmed that he had pulled Mr A by the arm. He did not raise issues or request anyone’s presence at investigation. Mr Cs role was to gather facts and pass to Human Resources. He did not make findings. The Complainant signed the typed notes and returned them.

During cross examination, Mr C confirmed a broad experience in conducting investigations. He confirmed that the 28 January investigation notes stood alone and were not augmented or redacted.

He confirmed that the area where the truck was parked was not encompassed by CC TV footage. The Complainant had not put Mr E forward for questioning at investigation. He interviewed people who were near the truck.

Mr C confirmed that he held full autonomy to investigate and he understood that Mr E had moved away from the truck and was not material to the investigation. He was clear that the complainant understood that he could be dismissed as part of the procedural framework.

Mr C confirmed that X and Y had not passed on this issue to him. The suspension was not prefaced by formulation of a specific complaint. Mr A and Mr Ms statements formed the basis for the investigation. Mr C had not made recommendations in his investigation.

Evidence of Mr B, Head of Insurance, Managed Disciplinary procedure.

Mr B confirmed that he had prior experience of conducting disciplinary hearings. He was requested to adjudicate on whether a disciplinary procedure should be invoked or not in this case. He confirmed receipt of witness statements and the investigation notes of the complainant and Mr C. He decided that the complainant’s actions on the day in question, speaking aggressively to a line manager and refusing to undertake a request, warranted disciplinary action. He drafted the letter of January 29 and met the Complainant in the Southern Office.

He informed the complainant that Mr A and the mobile mechanic, Mr M were available. He read out the statements and 1-4 allegations. The Complainant did not advance witnesses but confirmed that he had contacted Mr A and that he had “grabbed the line manager “. He admitted to engaging in a heated conversation, which he determined to be abusive to Mr A. The complainant did not answer the allegation on his absence.

 He found 3 out 4 allegations to be proven.

Mr B considered options open to him and weighed up the prospect of applying a final written warning but decided against it. He found the complainants behaviour to be unacceptable within a large workforce. He decided to dismiss the complainant.

Some days later, the complainant called him and pleaded for his job back. Mr B told him that he was no longer engaged in the process. He confirmed that on reflection, he would not have altered his decision in the case.

During cross examination, Mr B submitted that he was not aware of any supplementary notes in the case. He denied prejudicing the complainant. He re-affirmed that the complainant had not raised the relevance of Mr E. He conceded that statements could have been taken earlier but the complainant was away for 2 months.

The application of a final written warning was not commensurate with an employee placing hands on a Manager. He drew from Mr Ms recollections as he was present for the verbal abuse.

Mr B clarified that the company was not harmed directly by the actions of the complainant. The allegations were drawn from the statements of Mr A and Mr M.

He submitted that the handbook provided details on zero tolerance on grabbing a Manager. He was unclear as to why he had not referenced that the allegation on annual leave had fallen in the final letter. He had given some weighting to the apology offered to Mr A but felt that the assault and verbal abuse trumped this.

Evidence of Mr D, Appeals Manager, Group Commercial Manager

Mr D worked at the same level as Mr B. He was familiar to the role of Appeals Manager and undertook a comprehensive exploration of the documentation involved. He had full autonomy in his role and he was permitted to overturn, commute or uphold the dismissal.

The Complainant told him that he had done nothing wrong and that he had not grabbed Mr A.

Mr D found no faults in the dismissal and identified inconsistencies in the complainant’s statement.

The Complainant did not raise procedural shortcomings and no further interviews were conducted. Mr E was mentioned by the complainant, but Mr D disputed his relevance and stood over his decision to uphold the dismissal.

During cross examination, Mr D confirmed that his terms of reference were the emailed files referred to in his direct evidence. He was not sure if there were other notes.

He confirmed that the notetaker had spent ten years in Ireland but could not explain the reference to “arm vs sleeve “in the notes. Mr D was adamant that Mr M was a witness to the incident. He had not interviewed Mr E.

Mr D clarified that he did not see the relevance of inquiring into the verbal abuse outcome, but argued account was taken at the end.

The Complainant had not sought to return to work during the appeal. He had not considered the delay in initiating the matter through a procedural framework. Mr A had framed the complaint.

In conclusion, Counsel for the Respondent submitted that it had been clear that the complainant had laid hands on his line Manager. He dismissed the complainant’s version of events as “semantics”

 He had not appealed the physical assault finding in his letter of dismissal. He pointed to inconsistencies and credibility issues in both the complainant and his witness evidence. He disputed the complainant’s statement that he had not read the investigation meeting notes prior to handing them back.

Counsel stressed that Mr A had acted on his concerns promptly and within three days of the assault. The Complainant was then out of the workplace for 2 months. A change over in Managers followed.

The procedural framework which led to dismissal was one of fairness and complied with natural justice. The Investigation was one of fact finding. The Complainant was aware of the potential for a finding of dismissal.

Mr B approached the matter with an open mind and Mr A was made available and offered for questioning if the complainant wished. The Complainant was provided with an appeal.

The Company acted reasonably, and dismissal was found to be the only viable option in the case. Consideration had been given to a lesser sanction. The dismissal fell within the band of reasonableness of a reasonable employer. The Complainant had contributed

CA-00035182-002 Payment of Wages

Counsel disputed the claim for payment of minimum notice. He argued that as the employment concluded through gross misconduct, the complainant was not entitled to any payment in lieu of notice.

It is the Complainants case that he has been unfairly dismissed on 3 February 2019. Solicitor for the Complainant submitted a commencement date of 4 April 2017, amended on submission to 16 October ,2017.

 By means of the complaint form, the complainant submitted that he had been provided with a faulty truck to drive during his work. He had made multiple complaints about this. The Complainant experienced a personal bereavement in his home country necessitating extended leave to reconcile burial customs. He was shocked to learn on his return that he was not rostered for work.

The Complainant submitted that the complainant was faced with arduous driving conditions during his 12-hour shift on the 26 November 2019. He had placed his Manager on notice of the truck’s faults.

The Complainant travelled to Africa on December 1, 2019 to attend to a relative’s funeral. He returned on 22 January ,2020.

The Complainant was notified of his suspension and investigation on 23 January 2020. He attended the investigation on 24 January in respect of the four named issues. He was invited to attend a Disciplinary hearing on 28 January, heard on 29 January 2020.He learned of his dismissal on 3 February, which was attributed to 3 out of 4 issues. The matter of attendance had been dropped.

The Complainant was paid up to his appeal, which was held on 12 February, yet the notes are dated 19 February 2020. Dismissal was confirmed on March 2, 2020. In all, it was a 38-day process and he argued that this was a steamrolled process.

Solicitor submitted that Mr A had not made a formal complaint on the date of the incident. He denied that the complainant had assaulted his line manager, who, in turn should have faced disciplinary proceedings for verbally abusing the complainant, and omissions on health and safety. He stated that the complainant had touched Mr A’s sleeve

Solicitor for the Complainant raised issues regarding the unsatisfactory nature and incompletions of the hearing notes.

He also pointed to a disconnect in time between the occurrence on 26 November and the procedural framework that followed, which he argued was over extended by two months.

Solicitor for the Complainant denied that he had assaulted Mr A. The dismissal directed at the complainant had had a catastrophic impact on the complainant. A witness proximate to the events of November 26 was not involved in the resultant investigation. A comprehensive CC TV system was available to the respondent but was not called upon.

Solicitor for the complainant submitted that fair procedures had not accompanied the dismissal and that the complainant was subjected to a pre-determined outcome in Mr Cs statements at the disciplinary hearing. The Appeal process did not probe the complainants alleged refusal to take an order or his alleged verbal abuse of Mr A. Nor did the appeal involve a detached independent body, Hobson v Liebherr Great Britain ltd UD 451/2004

The Complainant had been denied his Personnel file due to the absence of a photograph.

The Solicitor clarified that there were no live parallel proceedings at large.

Solicitor for the Complainant contended that the Respondent had not followed fair procedures and the dismissal had not fallen within the band of reasonableness. He argued that the respondent had not met the test provided in Frizelle.

 in referring to the EAT case of Hennessy v Read and Write Shop, he submitted that the Respondents conduct required scrutiny, where the respondent is faced with a problem requiring investigation.

In applying Vita Cortex ltd v Dourellan at the EAT, he argued that an investigation must include an enquiry into all the surrounding circumstances. That meant that “no stone should be left unturned”

Evidence of the Complainant

The Complainant was a Driver of Trucks with skip attached since April 2017. He had a superior truck for 6 months which was replaced by a “bad truck” which had smoke and wi- fi problems. He contended when he complained Mr A told him there would be no other job for him. He recollected that the door had fallen off in February 2018.

He recollected that November 26, 2019 was a difficult day in the field. He was driving a defective truck and placed the wiper issue on the usual what’s app. His progress was impeded in getting around to complete his work. He finished his work and returned to the yard, parking alongside other trucks. He told Mr A that “he was suffering “as nobody had addressed his call out for the wiper on what’s app. The mobile mechanic fixed the wiper, but problems with the truck went much deeper. He said “nothing was right with the truck “

He disputed Mr as account of the interaction between them lasting 20-40 mins and offered a 10-minute recollection of duration where Mr A had said “don’t touch me “.

The Complainant denied assaulting Mr A and contended that the area was properly covered by CC TV. He said he signed off and went in the direction of the canteen, Mr E came into the yard.

He confirmed that he had later approached Mr A to apologise and confirmed that he worked with him the next day, without incident. He confirmed that he and Mr A had shook hands and there was no reference to abuse or refusing an order. the wiper was fixed there and then.

 He worked two further days before leaving for his holidays. He experienced some difficulties with his pay while away and sought to contact Mr A, but there was no answer. He was not paid for a period. On 22 January he rang Mr A for his roster from Amsterdam, but he did not get an answer.

In answer to his Solicitors question on his return of the investigation notes, he said he printed them off without realising that words were changed.

He gave evidence that he was attending a college course of 3 days per week

During cross examination, the complainant confirmed that he was a professional driver. He accepted that he had not brought the truck for repair during any of his 7 touch downs at the plant during his span of duty on 26 November 2019. He clarified site of fault from both sides to “the passenger side” He further clarified it was a long-standing fault from 2017. The real problem remained unaltered.

He confirmed that he had spoken to Mr A 5-10 times that day. Mr E was there for first conversation not Mr M. The Complainant then struggled in his recollection of the processes. He confirmed that he had pushed Mr A, but not that he had made contact.

He was aware of the potential for his dismissal. He denied that the 1-4 allegations occurred. He confirmed that he had signed the investigation record. He said that he had asked to question Mr A and Mr M but was told that Mr A was busy. He affirmed that he was not permitted to put anything to the witnesses. He had wanted to tell Mr B this, but he did not listen, he believed that he had already made his mind up.

He stated that “I did not grab or turn him around “He confirmed that he had touched Mr A’s sleeve, but not him. He had not pushed anyone.

 The Complainant argued that he experienced a culture of racism and had raised this before with managers but was not heard. The Complainant contended that he had not been given an opportunity to express himself during the procedural framework.

He commenced education in September 2020 and was in receipt of a back to education allowance. He had suffered from the impact of his dismissal.

The complainant clarified that the roster comes out Thursdays in advance. He confirmed that he had asked for his job back. He recalled that Mr A was addressing another driver when he returned to the yard but could not remember a name.

I asked the complainant if he had considered submitting an early response to the notification of allegations. He said he considered it but did not do it. He submitted that he had not received the disciplinary hearing notes or appeal notes in advance of the instant case. He had not considered bringing a representative to assist in the procedural framework.

He contended that he had been unfairly dismissed as he had not done anything wrong. He had not seen a negative reference from the company but presumed such.

The Complainant confirmed that he had not raised the topic of race with Mr B.  

Evidence of Mr E, Colleague of the Complainant

Mr E is a fellow truck driver, then employed by the respondent in the case. He recalled November 26, 2019. He said it was raining, he was placing diesel into a truck on the ground and the complainant was still in the truck. Mr A was checking the truck and asked why the complainant was driving with a “wiper like this? “The complainant was between .5 and 1 foot away.

Other drivers were queuing for diesel and Mr E overheard Mr A and the complainant in conversation. Mr M was not present. He came later at the behest of Mr A.

Mr E confirmed that he had not seen the complainant touch Mr A. Had they touched, he was certain he would have seen it. He did not witness verbal abuse or refusal of an order. He understood that the wiper was fixed in response to the complainant’s notification of the fault.

During cross examination, Mr E confirmed that his refuelling had not concluded, he clarified that he was waiting to refuel. He was unclear on the time that Mr A and the complainant first engaged. He did not accept that the complainant had touched Mr A. He attested to a 7 to 10-minute duration in their conversation.

He confirmed that a personal claim had been paid by the company. He no longer worked there.

CA-00035182-002 Payment of Wages, Minimum Notice

Solicitor for the Complainant submitted that the complainant was entitled to receive minimum notice in accordance with his contract of employment.

In conclusion, the Complainant’s Solicitor reaffirmed the contention that his client had been treated unfairly by his dismissal and relied on the submissions tendered.

CA-00035182-001 Claim for Unfair Dismissal

This a claim for Statutory Unfair Dismissal, which has been rejected by the Respondent. In reaching my decision, I have had regard for the entire written and oral submissions alongside evidence adduced. I have reflected on both parties’ presentations at hearing and wish to record that both parties expressed enormous conviction on their respective views of the facts of the case. It falls to me now to consider those facts and apply the law to those facts.

The law on Unfair Dismissal is set out in section 6(1) of the Unfair Dismissals Act, 1977.

Unfair dismissal.

6

6.— (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.

Section 6(4) (b) on which the respondent has relied permits a departure to this in the case where a respondent can establish that dismissal arose wholly or mainly from the conduct of the complainant.

Section 6(6) of the Act places a firm burden of proof on the respondent in that regard.

In addition, Section 6(7)(a) of the Act permits me to look at the reasonableness or otherwise of the conduct of the employer by act or omission in the facts of the case. In this, I hold a certain discretion.

It is important for me to point out that gross misconduct is not defined specifically in the Act but conduct as provided for in the Act, has been considered in a vast body of case law to date.

Ruffley V Board of Management St Anne’s School [2017] IESC 33,

 Bank of Ireland v Reilly [2015] IELJ 72,

Bunyan V UDT [1982] ILRM 404

Analysis:

I note that the complainant had been employed for over two years by the time of the events referred to in this case. Mr A submitted that relationships were good up to that point. The Complainant submitted that he had been given an unsatisfactory truck as replacement for a better one and had spent a lot of time raising his discontent on this. He had not raised a grievance on this issue. He made veiled references to his identification of racism in the workplace, but quickly countered that he had not raised these issues within the procedural framework, outside a reference on appeal.

Both sides accepted that the complainant experienced a personal loss in October 2019. Neither party agreed with the others perspective on how leave associated with this bereavement was managed. I did not see any associated records on this or any evidence of an application for compassionate leave as set out in the company handbook. It is of importance to note that a previous Manager associated with this issue had since left the business. There was some dispute on whether the complainant was placed on the roster to coincide with his return from his time spent out of the country. I established that the roster was usually published on the Thursday prior to the working week. I was not afforded a copy of that roster, so I am again reliant on the party’s evidence in that regard.

I have made these primary observations in the case as I intend to spend some time in a careful consideration of the gestation of the complaint which led to the complainant’s suspension by letter on 23 January 2020. This is a very important first step for me in this case as it was here that the seeds of the procedural framework were sown.

I have found the EAT Looney and Co Ltd v Looney U 843/1984, to beuseful in clarifying   my role further as Adjudicator of this case.

“ It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employers position would have acted as it did in its investigation or concluded as it did or decided as it did , as to do so would be to substitute our mind and decisions for that of the employer .

 Our responsibility is 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 employers’ actions and decisions are to be judged “.

Therefore, it is not up to me to judge the episodes of alleged physical assault, absence, disobedience or verbal abuse. Nor is it acceptable that I walk in the employer’s shoes as the decision to dismiss has already been made. Instead, I am to consider the facts through the prisms of presence of substantial grounds leading to dismissal and reasonableness of the employer’s actions.

1.       The Suspension

 I spent some time at hearing seeking to establish the flashpoint, if any,  for the decision which led to the suspension .I appreciate that the prospect of deciding to suspend an employee is challenging .I have considered Hogan J in Mc Mahon v Irish Aviation Authority [2014]IEHC , 431, judicial review , on the loose  parameters of adherence to fair procedures of a “ holding suspension “ to enable an urgent inquiry .However , reflecting on the impact of such  a suspension, Justice Hogan drew on Wallace v Irish Aviation Authority [2012]IEHC 178 when he stated :

“Often the very fact of suspension is enough, in this valley of squinting windows, to expose the employee to the decidedly unpleasant prospect of calumny and detraction at the hands of the unforgiving and the uncharitable”

In this case, I can understand that the respondent sought to strike a balance on deciding on a holding suspension in the best interest of the Company. However, I have concerns at the pathway travelled to that junction. I accept that Mr A submitted his concerns regarding the events of 26 November to Mr Y, who noted it in his diary and it went no further. There were no medical reports, incident reports, Health and Safety involvement contemporaneously with November 26. I also noted that the reference to verbal abuse was linked to an earlier dialogue on leave requests. The reference to unapproved absence post-dated 26 November 2019.

I asked Mr C if the issue of the alleged assault had formed part of the due diligence/ handover when he took up position on January 6? It had not. I probed further in seeking to determine the flashpoint. I found it in a standard conversation Mr C had with Mr A in the early days of his tenure when he sought a low down on driver issues. Mr A flagged the issues he had with the complainant at that point and Mr C sought to address these as “the new broom “. In that I believe that he was well intentioned, however, he may have overlooked that Mr A already had personal involvement in the matter.

I was alarmed that the Respondent had no organisational memory of action taken on an alleged assault or alleged verbal abuse for over two months. In this, I agree with the Complainant.

I do not accept that the complainant’s absence was enough justification for the procedural inertia. However, I find that the respondent’s dissatisfaction with their perceived viewpoint that the complainant was playing” fast and loose” with a leave system clearly “rubbed salt to the wound “in the aftermath of the incident of November 26.

 I accept Mr As evidence that the complainants extended leave was not approved prior to his travel and that would explain the shortfall attributed by the complainant to his pay over the Christmas period. However, I found there was plenty scope for dealing with this through the company disciplinary policy.

 I looked for evidence on what exactly framed the basis for the suspension and investigation? The Respondent told me that it was Mr As complaint. However, the complaint was not committed to writing, by means of a Statement until January 27, 2020, some 4 days post the decision to suspend the complainant and some 3 days post the investigation. I must conclude that the decision to suspend was taken on foot of the informal contact between Mr C and Mr A as highlighted above. I find this to be an unsound basis in the face of a consideration of disciplinary action for an employee with a clean disciplinary record, already absent on some version of bereavement leave.

I was not satisfied with the lack of chronological detail contained in the letter of suspension. Given that it was later relied on as the sole document governing the Investigation, best practice and fair procedures would indicate that the allegations should have been particularised in terms of time and place. They were not.

I now draw on the deliberations of Noonan J in the High Court in Governor and Company of Bank of Ireland and Reilly [2015] IEHC 241, Par 40-41

“….. thus, a holding suspension ought not be taken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interreference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process”

I accept that Mr C had concerns about having the complainant back in the workplace with the matter of 26 November unresolved and he wished to avoid a repetition .However , I would have preferred to have seen a direct engagement with the complainant prior to any attempt to suspend him .I did not establish any rationale why  the complainant could not have remained at work pending the investigation . Reilly applied. I would also have preferred if the complainant had made a written response to the allegations.

2.       The Investigation

The investigation relied on by the respondent in this case took place within 24 hrs of notification of its occurrence. I did inquire as to the questions asked at hearing as these were unclear to me. I did not secure a list of questions. This in turn made it difficult for me to ascertain whether fair procedures had been followed in the exercise of the power of investigation.

I found the investigation to be largely incomplete as persons named in the complainant signed record were not approached, namely a driver or   administrators.  Yet, Mr M detailed in Mr A’s statement was included, while Mr E was not. For me, this raised some doubts on the integrity of the process.

 I appreciate that it fell partly to the complainant to detail his response in his defence and to submit names of people he wished to be interviewed. In this I found the complainant missed a valuable opportunity. I note that he was not informed that he could bring representation to this investigation. During the hearing, the complainant confirmed that he was aware that he could bring a representative to the proceedings but chose not to. In my opinion, a representative at this early stage may have brought a clarity and resolution to the issues.

I have reflected on the respondent submission that the complainant had signed his acceptance of the investigation notes on 28 January. I accept that the complainant was provided with an opportunity to influence the investigation and for some reason, returned the notes without scrutiny or response. This was another missed opportunity.

However, most alarming was the omission to put the 2 witness statements to the complainant during the investigation. Mr C told the hearing that he furnished his fact-finding investigation to HR, who passed it to Mr B.

I found a marked inconsistency in how the parties to the investigation were managed. The complainant was interviewed on 24 January. Both witnesses seem to have been interviewed on 27 and 28 January and signed statements in front of Mr C. I did not have sight of an analysis of this information as outlined in the letter of suspension.

“If we consider that there are grounds for disciplinary action, we will inform you of those grounds in writing and you will have the opportunity to state your case at the hearing, in accordance with a Disciplinary procedure “

Instead, I learned that the fact-finding investigation went to Human Resources. I did not establish the existence of an Investigation Report, yet it is referred to in Mr Bs written report. I have concluded this case without sight of an investigation report, which would have helped me to follow the respondent sequential thought and procedural processing in the case.

I was unhappy with the speed of the investigation as well as its lack of depth.

 In Michael Morales v Carton Bros UD 835/2011, a case involving a physical altercation in a chicken processing plant, in determining whether an investigation met the required level of fair procedure, the EAT emphasised that an investigation should be open minded and full, in the sense of no stone being left unturned.

1 The employee was aware of all allegations and complaints that formed the basis of the proposed dismissal

2 the employee had adequate opportunity to deny the allegations or explain the circumstances

3 evidence of witnesses sought where allegations were denied

4 right of representation

In that case, the EAT found that the complainant may not have appreciated the enormity of where he found himself. I found an analogy in this case.

I found the investigation conducted in this case did not embrace the latter three legs of Morales. I have found that he was not approached for his responses to the witness statements within the parameters of the investigation. That was a serious departure to fair procedures.

I found that the respondent did not place enough regard to Mr A’s acknowledgement that

“X Later came to me in the yards and apologised, we agreed to move on from this issue, but I did again say to X if he brought the truck over when originally asked none of this would have happened “

This seemed to me to an awkward attempt at closure, and yet the issue went on to form two parts of the allegations which led to investigation. I could not find a visible connection to this alleged dormancy and the eventual compilation of the 4 allegations. This caused me to reflect on the latter-day incident of the allegation on unapproved leave which, for me appeared to resurrect the previously dormant issues of assault, verbal abuse and disobedience.

In this, I am mindful of the Labour Courts very clear dicta on Kilsaran Concrete ltd v Vitalie Vet [2016] ELR 237, where an employer is not permitted to augment allegations as an investigation progresses.

 I found the reference to verbal abuse in the letter of suspension to be rather a moot point and automatically inferred its association with Nov 26. During the hearing, it became clear that this was a stand-alone complaint, referring to prior annual leave /absence disputes. I found the pronounced lack of particularisation in this regard to be injurious to the complainant.

 I accept the complainant’s application of Vita Cortex ltd in this regard.

3.       The Disciplinary Procedure and Dismissal

However, it is the conduct of the disciplinary procedure with which I have most problems in this case. I have taken some guidance from Tom Bingham’s Rule of Law Book at p62 on the Exercise of Power.

He says that the mind of the Decision Maker should not be tainted by bias or personal interest (he must not be a Judge in his own cause) anyone liable to have an adverse decision made against him should have a right to be heard

The Respondent has asked that I have regard for AIB V Purcell and Frizelle and I have done so. As already stated, I did not establish the grounds for moving to the Disciplinary hearing stage. I did not obtain deliberations in a report or a careful analysis of what was deciphered at investigation. I accept there were no published findings. However, a paragraph on the parameters of the conduct being considered at disciplinary was inconclusive. The letter did not flag that dismissal was a potential outcome.

I accept that the Complainants Representative made multiple submissions on the incompletion and inconsistency of the records in this case. This prompted me in looking a little “below the bonnet “of this aspect of the case. I was disappointed that Mr B chose to adopt a system of reading out statements at a disciplinary hearing. All documents should have been shared in advance to assist in preparation for a full response.

 Equally, Mr B refers to an investigation report. I have exhausted all avenues in pursuance of such a document and I must reluctantly accept that it does not exist for my inquiry.

I accept that Mr B approached the hearing with an open mind, however, he rushed to judgement very early on both via the recorded notes and the respondent records of the meeting, which differed. I can appreciate that Mr B was disappointed by the complainant’s responses but even he as disciplinary manager ought to have listened impartially without pronouncement.

As stated, I can appreciate that he was exasperated with the complainant’s responses at hearing, however, he ceased to see the complainant as an individual and moved too quickly to judgement when he said …. This will not be tolerated from any employee high or low in the company.

I did probe around the clear discrepancy in the meeting notes and I cannot accept that Mr B did not have an appreciation of the discrepancy. The outcome of this meeting led to a termination of employment and I was looking for a strict adherence to accurate reportage. I did not find this and must conclude that while I accept that the complainant presented as a pronounced management challenge to the respondent, that his right to be heard was severely compromised by that remark which amounted to a predetermination of the issues.

In applying Frizelle,

1 I accept that all complaints were put to the complainant, however, the lack of particularisation mitigated the effectiveness of this communication.

2 I found that the complaints were not put to the complainant “factually clearly and fairly without any innuendo or hidden inference or conclusion “

3 The Complainant was interviewed. I have recorded my views on the incompletion here.

4 I could not establish that the decision to dismiss was based on the balance of probabilities on factual evidence and considering the explanation offered.

I found that the complainant denied assault and the respondent did not show due regard for this. The case rested on the complainant confirmation that he had placed his hands on a line Manager, yet the charge was assault. There is a significant difference between both actions.

The respondent did not place any weighting on the apology given to and accepted by Mr A on that day. I found that by not dealing with the issue on a contemporaneous basis, both parties were ill served. I refer, to Mr As evidence, where he stated he knew an investigation was coming. Yet, the only viable source of that information can have been from Mr C, a newly appointed Manager coming sometime after the earlier mentioned Managers had not acted on it.

I found that decision to dismiss fell far beyond the actions of a reasonable employer. Four allegations were reduced to three on the final decision, without a credible explanation for the omission on why the allegation on unapproved absence fell. The four allegations neither singularly or cumulatively amounted to gross misconduct. Each were worthy of and stood a chance at resolution through the company disciplinary procedure and I believe the transition of management regimes at year end, placed an enormous spotlight on the complainants unapproved absence and inadvertently militated against that completion.

I found the process tainted by a clear exasperation with the complainant, who led with several explanations for his conduct, which were all unacceptable to his employer. I had a difficulty with the evidence of Mr E, who seemed to carry a grudge against the respondent.

Finally, the decision to dismiss was not proportionate to the gravity of the complaint and I could not establish that any sort pf proportionality assessment or consideration of the impact of dismissal had on the complainant.

None of this was rectified on appeal where there was provision for a de novo hearing by the CEO in the face of a denial of allegations.

In Noritake Ireland ltd v Kenna UD88/1983, applied by the Labour Court in Permanent TSB V Callan UDD 1968, the Tribunal considered the following test

1 Did the company believe the employee misconducted himself as alleged?

2 Did they have reasonable grounds to sustain that belief?

3 was the penalty proportionate?

Yes, the respondent has clearly satisfied the first test here. However, I found by their incomplete procedures and precipitous pronouncement at disciplinary stage, they did not have reasonable grounds to move to dismissal. I have also found that the penalty of dismissal was wholly disproportionate on an unblemished record.

I also have a residual unease that the complainant was not provided with the notes on the disciplinary and appeal hearings prior to this case. The variance in the disciplinary hearing record is most pronounced and was not explained by Mr B.

However, I have given some consideration to Counsel for the Respondents submissions on the contribution made by the complainant to his own demise. I find that the complainant played a significant role in his own demise. I find that it was within his gift to apply for leave within the generosity of the respondents leave scheme inclusive of special leave, compassionate leave, annual leave or even swopped shifts and this process was not completed in full by the complainant.

 I found this lack of attention to detail or an exhibition of an awareness of who would cover work in his absence ran deep for the respondent in this case and was not appreciated by the complainant. This, in my opinion, created a deep chasm and loss of trust for the respondent. I have given some consideration to the complainant evidence and documentation on loss and mitigation and am mindful that he was cast as unemployed on the cusp of a national pandemic. I note that he was engaged in full time education x 3 days a week September 2020 to May 2021 and not available for work for those days.

I do not accept the complainant’s submissions of being impeded by a negative reference. No evidence of this was submitted.

I have found that the complainant was unfairly dismissed. I find that the respondent cannot safely rely on the defence in section 6(4)(b) of the Act on conduct. I have found that there were no substantial grounds justifying dismissal. I have also found that the dismissal strayed outside the band of reasonableness, I would have expected in a reasonable employer.

I have, however, found that the complainant contributed to the dismissal.

CA -00035182-002 Payment of Wages Act, Minimum Notice

Section 1 of the Payment of Wages Act, 1991 refers to wages in relation to an employee means any sum s payable to the employee by the employer in connection with his employment and includes payment in lieu of notice.

I have not accepted that gross misconduct was proved in this case. Therefore, the complainant is entitled to recover payment in lieu of notice.

The claim is well founded.

CA-00035182-001 Claim for Unfair Dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complainant was unfairly dismissed. I have also found that he contributed to his dismissal.

I find that compensation is the only practical way forward in this case as the employment at the centre of the case is not redeemable for either party.

I would recommend that the Respondent immediately review their Policy on suspension to take account of the principles contained in Reilly.

I order the Respondent to pay the Complainant €29,960, value of 30 weeks pay in actual and prospective economic loss.

CA-00035182-002 claim for payment of minimum notice

Section 6 of the Payment of Wages Act,1991 requires that I decide in relation to the complaint in accordance with section 5 of that Act.

I have found the claim well founded and order the Respondent pay the Complainant compensation of two weeks’ pay, €1,464.00 in respect of his notice period.

Claim for Unfair Dismissal, Minimum Notice.