Complainant

Respondent

Parties

Luke  Sutton

Dualway Group Group

Complainant

Respondent

Anonymised Parties

Representatives

Andrew Turner, Hamilton Turner Solicitors

Stephen Sands    

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-00031362-001

04/10/2019

The Complainant commenced his employment as an apprentice mechanic with the Respondent on 1 October 2016 and was paid €440 per week. His employment was terminated on 24 April 2019 on the grounds of gross misconduct following the conclusion of an internal process. He is asserting that his dismissal was unfair.

The Complainant’s representative stated that the decision to dismiss was disproportionate and that the Respondent failed to consider the totality of the case, including the fact that Mr A spilled hot liquid on the Complainant’s hand and that Mr A had previously referred to himself as “the foreigner” in a WhatsApp group of which both he and the Complainant were members.

On 14th March 2019, an incident occurred between the Complainant and an employee Mr. A on the company premises further to which a verbal and written complaint was made by Mr A. The Complainant was advised of same and was suspended pending investigation. An investigation meeting took place on 2nd April 2019 and the Complainant was accompanied by his union representative. He was also provided with all witness statements prior to the investigation meeting.

The investigation meeting was to investigate the following;

·       A complaint submitted by a fellow employee Mr A in relation to an allegation of racially abusive behaviour towards him on 14th March 2019.

·       A witness statement submitted by Ms. B in relation to an allegation of racially abusive behaviour towards a colleague, Mr. A, on 14th March 2019.

·       Ongoing reports regarding his attitude in the workplace

The Complainant was questioned on the witness statements and asked to provide his version of events. The issue of the Complainant’s behaviour on four occasions towards other team members was also raised in the meeting. In relation to the racial abuse, the Complainant admitted to calling Mr A “a stupid fucking foreigner” but denied telling him “to fuck off back to Poland” and that of the witness statement of Ms B “you fucking foreign cunt fuck off to Poland”.

The Complainant also confirmed on 15th April by email to Human Resources that he had made the following comments towards his colleague

“Out of shock and pain I called him a stupid fucking foreigner.”

Based on the allegation of racially abusive behaviour, previous poor behaviour towards other team members and following the investigation meeting, the matter was referred for a disciplinary hearing.

Disciplinary Hearing

Based on the investigation meeting notes and statements issued, the Complainant was asked for his version of events and further questioned on his behaviour. It was also confirmed at this disciplinary meeting that the Complainant had attended the company annual refresher training which included the Bullying and Harassment policy.

The Complainant was dismissed on 25th April 2019 on the grounds of gross misconduct and the dismissal was confirmed by letter. Specifically, the Respondent advised the Complainant that his explanations surrounding the events in questions were not acceptable, that he admitted to the use of racially abusive language as documented in the investigation letter dated 4th April 2019 and that this was corroborated by the witness statements.

It was also highlighted that the Complainant took no ownership, displayed no remorse or made any offer of apology for what he himself admitted was an inappropriate response. The allegation of racially abusive behaviour in the workplace amounted to gross misconduct. The Complainant was also advised of his right to appeal and that he would be paid up to the appeal.

Appeal

The Complainant appealed his dismissal and was paid up to the appeal outcome issued on the 7th May. The Complainant’s dismissal was not overturned.

The Law

The Act at Section 1, in relevant part, defines dismissal as follows:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6 of the Act, in relevant part, makes provision as follows:

(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:

(b) the conduct of the employee,

Section 7 of the Act, in relevant part, makes provision as follows:

(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….

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

(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.”

Findings

In line with (7) (a) above, my role, as the Adjudication Officer in this case, is therefore not to establish the guilt or innocence of the Complainant but rather to decide if the Respondent acted reasonably. This view is supported by the EAT decision in Looney and Co Ltd v Looney UD 843/1984:

‘It is not for the EAT to seek to establish the guilt or innocence of the Complainant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded 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 own 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 employer’s actions and decision are to be judged.’

I note that following an inadvertent spillage of coffee on him by Mr A, the Complainant admitted, during the course of the investigation, to having called him“a stupid fucking foreigner”. Both Mr A as well as a witness to the incident, Ms B, also informed the Investigator that, during the altercation, the Complainant told Mr A to “fuck off to Poland” or “fuck off back to Poland” although this was denied by the Complainant.

I also note that the Respondent’s Bullying and Harassment policy states that “Bullying and/or harassment on any grounds covered by this policy are a disciplinary offence and depending on the seriousness of the incident may lead to a summary dismissal” and that the Respondent defines gross misconduct as:  

·       Indecent or immoral behaviour

·       Discriminatory conduct

·       Failure to comply with company policies and procedures

·       Any other action which on a common sense basis is considered a serious breach of acceptable behaviour

In line with the EAT decision cited above, it is not for me to put myself in the place of the employer in the within case. Rather my role is to determine whether the actions of the Respondent fall within the range of actions which a reasonable employer would take in the circumstances.

Having reflected on the matter at some length, I find that, with some hesitation, and notwithstanding the Complainant’s inexplicable failure to apologise for his actions, the decision by the Respondent to dismiss him was unreasonable in the particular circumstances of the case and warranted a sanction short of dismissal. Specifically, I cannot ignore that the Complainant only harassed Mr A on one occasion, in the heat of the moment, following an incident where he was understandably annoyed when coffee was inadvertently spilled on him.

In addition, I noted that there was no suggestion from the termination letter of 25th April 2019, that alternatives to dismissal, such as suspension without pay or a final written warning, were considered.

While I also note the Respondent’s assertions that the Complainant demonstrated poor behaviours in his relations with other employees, his disciplinary record at the time of this incident was clean and although negative findings were subsequently made against him in respect of these behaviours, he was dismissed on the grounds of gross misconduct in relation to this incident only.

Finally, I believe that the decision to dismiss was at odds with the Respondent’s own Bullying and Harassment policy which, as highlighted above, states that “Bullying and/or harassment…. are a disciplinary offence and depending on the seriousness of the incident may lead to a summary dismissal.”  (my emphasis).  Specifically, I cannot accept that this one incident of harassment is at the most serious end of the scale, especially given the circumstances in which it happened.

Bearing all of the above in mind, I find therefore that the Complainant was unfairly dismissed.

Having decided that the Complainant was unfairly dismissed, I must now examine the appropriate form of redress and have regard, in making this decision, to section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal

FINDINGS

Given the reasons behind the Complainant’s dismissal, the fact that he has secured alternative employment elsewhere and his preference for compensation as a remedy, I consider that this is the appropriate form of redress in this case.

In assessing the amount of compensation to award, I note that the Complainant obtained alternative work very quickly and that he suffered no financial loss as a result of the dismissal.

Section 7 (1) (c) (ii) of the Acts above states that where there is no financial loss, I may award 4 weeks’ pay. Given that the Complainant earned €440 per week, this amounts to a total of €1,760 in accordance, with section 7 (1) (c) (ii) of the Acts.

Section 7(3) of the Act further states that:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”;

Given that the Complainant’s service with the company, his accrued redundancy entitlement, which he lost as a result of his dismissal, amounted to €2,692.80

I estimate therefore that the financial loss attributable to the dismissal is €4,452.80

I also note however that, in accordance with s.7 (2) (f) above, I must consider if the Complainant contributed to the dismissal. In recognising that he did so, I have reduced by 40% the size of the award I would otherwise have made and decide that an amount of €2,671.68 payable by the Respondent in respect of the unfair dismissal is just and equitable.

Gross misconduct