Complainant

Respondent

Anonymised Parties

A Truck Driver

A Sand and Gravel Business

Representatives

Vivian Cullen, SIPTU

Ciarán Loughran, 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-00034617-001

13/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034617-002

13/02/2020

The respondent company is a long-established, family-run sand and gravel business, employing 22 people. The complainant commenced employment as a truck driver in 1988. Before 1995, he left twice, but his service is considered to be continuous from June 26th 1995. At the time of his dismissal, his annual gross salary was €60,840.

The complainant was dismissed on January 6th 2020, at the end of an investigation that concluded with a finding that he assaulted another employee. On the form he submitted to the WRC, the complainant said that he refutes this allegation of assault and he claims that there was insufficient evidence for his employer to dismiss him. He claims that the sanction of dismissal was disproportionate and excessive and based on another person’s word against his.    

For convenience in this document, I will refer to the office manager as “OM” and to the transport manager as “TP.” I will refer to the employee who was assaulted as “AE.”

Background to the Dismissal of the Complainant

On behalf of the respondent, Mr Loughran provided a comprehensive submission in advance of the hearing of this complaint. From the employer’s perspective, the background to the events that led to the complainant’s dismissal can be summarised as follows:

On Friday November 1st 2019, when the complainant returned from delivering his first load, he reported to the transport manager, “TP,” that the windscreen of his truck was sprayed with grease. He had made similar complaints about this previously. TP checked the windscreen of the truck on the inside and outside but didn’t see any grease. He checked the CCTV footage in the yard, but didn’t see anyone near the truck. TP then looked back at the video for the previous night and early morning of November 1st. In the video, he observed himself and another employee, “AE,” arriving at work at 5.50am. Both men went to the garage to clock in. While they were in the garage, the complainant can be seen on the CCTV opening the door of AE’s car and reaching in to the seat, floor and door of the car.   He can be seen closing the door and running off. AE then emerged from the garage and went to put his car in the car park.

TP reported what he had observed on the CCTV to the managing director, who advised him to check AE’s car.   When AE returned to the car park, TP told him what he had seen and they checked the car, but didn’t find anything out of order.

One week later, on Friday, November 8th, AE reported that he had been assaulted by the complainant. A copy of his note of what occurred was submitted in evidence by the respondent.   He said that around 5.40am, after he clocked in at the garage, he parked his car in the car park and as he was getting out, the complainant grabbed him. He said that he fell to the ground on his knees and the complainant punched him on the head, and repeatedly hit him on the shoulders and arm, shouting, “you little bastard, leave my lorry alone!” AE said that he pushed the complainant off, following which the complainant ran to his lorry and drove away. AE’s note states that he waited until the office opened and he reported what happened to TP. A note from TP was also submitted in evidence, and this confirms his observation that AE was shaken and dishevelled and that marks on his face indicated that he had been punched. Photos of AE’s injuries taken by TP on the morning of November 8th and by his wife three days later were submitted in evidence in the respondent’s book of documents.

After the assault, AE made a delivery and returned to the tip depot and TP observed that he looked shaken.   AE told TP that his head was sore and that he was going to go to hospital to have his injuries looked at.   He subsequently reported the assault to the Gardaí.

On Tuesday, November 12th, the office manager, “OM,” wrote to the complainant to invite him to an investigation meeting on November 19th to discuss AE’s allegation of assault. The letter included a copy of the company’s disciplinary procedure, CCTV footage of the complainant at AE’s car on the morning of November 1st and photos of the injuries AE suffered as a result of the assault. The meeting was postponed because the complainant’s representative was unavailable on November 19th. The complainant was suspended on November 22nd, pending the outcome of the investigation and an investigation meeting was scheduled for November 27th. When the complainant didn’t turn up for the meeting, TP contacted him, but he said that he didn’t receive the letter. An investigation meeting eventually took place on December 2nd, with TP conducting the meeting. A copy of the notes of the meeting was submitted in evidence.

At the meeting, the complainant was represented by his SIPTU official, Mr Cullen. When he was asked about the morning of November 1st and his search of AE’s car, the complainant said he was looking for a grease sprayer or a grease gun. When he was asked about the assault on AE on November 8th, he said his only sight of AE was when he drove past him on the lane to the depot. Mr Cullen objected to the investigation being carried out by TP, suggesting that he had acted as a judge in a case in which he had a personal interest.

A note of the outcome of the investigation meeting on December 2nd shows that a conclusion was reached that the complainant interfered with AE’s car on the morning of November 1st, and that this was corroborated by the CCTV footage.   The second conclusion arrived at was that, although there were no witnesses to the assault on AE on November 8th, the nature and extent of his injuries and the hospital report of the same day suggested that an assault had taken place.

A disciplinary meeting was held on December 12th, chaired by the office manager, “OM.”   The complainant was at this stage in possession of AE’s hospital report and his statement of what occurred on the day of the incident.

Regarding the complainant’s admission that he had searched AE’s car on November 1st, Mr Cullen said that he was seeking proof that AE had grease in his car. He said that the grease on his windscreen had abated when AE was on holidays. Mr Cullen challenged the source of the scratch marks on AE’s face that were detailed in the hospital report. He said that the complainant has short finger nails.

In response to questions from OM, the complainant said that he could not explain why he thought that AE was putting grease on his windscreen and that he had no reason to fall out with him. He could not explain why, on the morning of November 8th, when he was driving to work behind AE and another employee, he overtook them in the entrance lane. He said that “they were taking their time and no signs not to pass so I overtook.” At the end of the meeting, Mr Cullen said that he disputed the findings of the investigation and that some consideration should be given to the complainant’s long service.

The disciplinary meeting was reconvened on January 6th, to inform the complainant and his representative of the company’s decision. Following a summary of the findings of the investigation meeting and an assessment of the complainant’s responses, OM told them that, on the balance of probabilities, it was her view that the complainant assaulted AE on November 8th and that he was being dismissed for gross misconduct.   This was confirmed in a letter of the same date.

The complainant appealed against his dismissal and on January 24th, following an appeal hearing chaired by the managing director, the decision to dismiss him was not overturned.

The Respondent’s Case that the Dismissal of the Complainant was Not Unfair

It is the respondent’s case that the complainant’s actions amount to gross misconduct and that dismissal was justified in the circumstances. Mr Loughran referred to the following legal precedents in support of the respondent’s decision:

Looney & Company v Looney, UD 843/1984

Here, the Employment Appeals Tribunal (EAT) stated that it was not the role of the Tribunal, and now, as the adjudicator, it is not my role, to establish the guilt or innocence of the complainant, but to consider what a reasonable employer might do in similar circumstances.

A Warehouse Team Leader v A Fresh Foods Business, ADJ-00012944

I was the adjudicator of this complaint, heard in 2019. The warehouse team leader, who was dismissed, claimed that he was provoked by a colleague and that he acted in self-defence. Measured against the effect of his dismissal on the complainant, compared to the effect of his conduct on his colleagues and on his employer, I concluded that the decision of the employer to terminate the team leader’s employment was not unreasonable.

Mr Loughran submitted that, in the case we are considering here, the decision to dismiss the complainant was reached following an investigation that was in line with the principles set out in the statutory instrument, 146/2000, the Code of Practice on Grievance and Disciplinary Procedures. The complainant was informed of the allegations against him, he was provided with documents relied on by his employer in the course of the investigation and he was represented at all the meetings that preceded his dismissal. The process that was followed included separate investigation, disciplinary and appeal meetings and the complainant was given an opportunity to state his case and to challenge the allegations against him.

Mr Loughran referred to the precedent case of Walls Leisure Ltd v Said Belarbi, UD 492/2008, where the EAT found that there were deficiencies in the company’s disciplinary procedure. However, weighing the substantive reason for the dismissal against the procedural defects, it found that the dismissal of Mr Belarbi was not unfair.

It is the respondent’s case that the complainant’s actions were the reason for his dismissal and that, in the event of any finding that the termination of his employment was unfair, he is not entitled to redress. To this end, Mr Loughran cited the decisions of the EAT in two cases, Murray v Meath County Council, UD 43/1978 and O’Keeffe v Mid Kerry Co-op Livestock, UD 1034, where the Tribunal decided that the complainants contributed 100% to their own dismissals and did not award any redress.

Concluding his submission, Mr Loughran described the dismissal of the complainant as a “tumultuous event” for the company, and that it was something that was not done lightly.   He said that the burden of proof in respect of what occurred on November 8th 2019 is not the same as the burden that exists in a criminal matter.   As the adjudicator, I am required to reach a conclusion here on the basis of reasonable belief.

Evidence of the Transport Manager, “TP”

TP was the complainant’s line manager. In his role as transport manager, he is responsible for the daily dispatch of product and for the management of employees.

Describing the events of November 8th 2019, TP said that he arrived at the pit at 5.56am.   AE was parked beside his truck and he approached TP in the shed. He appeared to be hunched over and was holding his arm. TP said that he asked AE if he was okay, and he said that the complainant had given him “a hiding” in the car park. TP said that he saw fresh marks on TP’s face and that his clothes were covered in mud down one side. TP said that he brought AE into the office and he asked him to tell him what happened. AE told TP that as he was driving up the lane to the pit, he was behind another employee. He said that the complainant overtook both cars in the lane. By the time AE arrived, the complainant had clocked in and had driven to the car park. AE clocked in and drove to the car park and, as he went to get out of his car, AE said that the complainant dragged him out and “kicked the shite out of me.”

At this stage, the complainant had left the pit and TP said that it appeared that he had left about five minutes after he had clocked in.

TP said that the complainant had previously reported that there was grease on the windscreen of his truck, but on investigation, TP said that there was never any evidence of this, although there had been evidence of bird droppings. TP said that he had checked the CCTV footage to see if anyone had sprayed grease on the truck driven by the complainant and no evidence of any interference had been found.

He described what happened on November 1st 2019, when the complainant returned from delivering his first load and complained of grease on the windscreen.   TP said that he checked the windscreen and could not see any evidence of grease. He then informed the complainant that he would check the CCTV footage. When he went back to the early part of that morning, he observed the complainant searching on the floor and under the passenger seat and the door of AE’s car as AE was clocking in at the garage.

Returning to the events of the following Friday, November 8th, TP said the drivers are required to do a “walk around” check of their trucks each morning and to report any defects before they make their first delivery. He said that the complainant appeared to have left the pit four or five minutes after he clocked in, without checking his truck.   TP said that this led him to think that the complainant wanted to get out of the pit because he would have known that TP would be arriving around 6.00am. He said that, apart from the one other employee who drove in at the same time as AE and the complainant, they were the only two employees at the pit at that time.

In response to questions from me, TP said that the start time at the pit is 6.00am. The complainant clocked in at 5.47am and AE one minute later. The third employee went directly to a truck.

Evidence of the Office Manager, “OM”

OM said that she is normally based in the company’s office away from the pit. She said that she is responsible for accounts and wages and she was new to disciplinary proceedings. At the disciplinary meeting on December 12th, she said that she took a note of everybody’s side of the story. She said that she was very conscious that the complainant had worked with the company for a very long time and that a decision to dismiss him was very serious. She said that she reached the conclusion that he had punched AE and that his behaviour was dangerous.

Background

On behalf of the complainant, Mr Cullen said that he refutes the allegation that he assaulted his colleague, who we have referred to as “AE.” It is the complainant’s belief that grease was being applied to the windscreen of his truck and that this was being done by AE. When AE was on holidays, the complainant said that there was no grease on the windscreen.

On November 1st, when he observed the complainant interfering with AE’s car, TP inspected the car with AE. Mr Cullen noted he did not inform the complainant that he had observed his behaviour on CCTV or that he had examined AE’s car as a result.

Mr Cullen outlined the sequence of meetings that culminated on January 6th 2020, when the complainant was dismissed followed by the appeal meeting on January 24th. Referring to the High Court case of Frizelle v New Ross Credit Union limited [1997] IEHC 137, Mr Cullen asked me to take account of the premises set out by Mr Justice Flood before a decision to dismiss an employee can be considered to be reasonable. These can be summarised as follows:

1. The complaint must be a bona fides complaint unrelated to any other agenda of the complainant.

2. Where the complainant is a person or a body of intermediate authority, it should state the complaint, factually, clearly and fairly, without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed and his version of events noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The outcome of an investigation should be based on the balance of probabilities flowing from the factual evidence and in light of the explanation offered.

5. The actual decision, as to what sanction should follow, should be a decision proportionate to the gravity of the complaint and of the gravity and effect of the dismissal on the employee.

In summary, Mr Cullen submitted that the principles of natural justice must be unequivocally applied.

The Complainant’s Case that his Dismissal was Unfair

Outlining the complainant’s case that his dismissal was unfair, Mr Cullen said that by dismissing the complainant, the respondent acted disproportionately and disregarded natural justice and fair procedures. Mr Cullen referred to UD2196/2011, the case of an Employee v an Employer, heard by the EAT in 2013. The complainant in this case reacted to being racially abused and spat at by a member of the public by spitting at her assailant. In its deliberations, the Tribunal considered the meaning of the adjective, “substantial,” in relation to the grounds for dismissal:

The adjective “substantial” means that the ground relied upon should be a matter of substance

rather than form, and should be a matter of gravity. In weighing the gravity of the matter

against the penalty of dismissal the Tribunal must have “regard to all the circumstances” as the

subsection requires. In other words the Tribunal should decide whether the penalty of dismissal

is proportionate to the offence.

The employer decided to dismiss the complainant in that case, but the Tribunal determined that the sanction of dismissal was too severe, remarking as follows:

Having viewed the video of the event, the Tribunal is of the view that the conduct of the

appellant was such as to bring the company into disrepute and would justify a penalty of some

sort, but “having regard to all the circumstances” especially the severe provocation would not

amount to “gross” misconduct as the respondent argued. Subsection 6 (1) does not use the

adjective “gross” or even the word “misconduct” but only the more neutral word “conduct.” As

already stated her conduct did merit some penalty, but the penalty should be proportionate.

When we add in the element of provocation, and also have regard to her previous excellent

record, we are of the view that dismissal was disproportionate.

Mr Cullen said that the onus is on the employer not only to show that there were substantial grounds to justify the dismissal of the complainant, but that, in reaching the decision to dismiss him, the company followed fair and proper procedures.

Referring to my role as the adjudicator not to act in the place of the employer, but to consider if the employer’s response the complainant’s conduct was reasonable, Mr Cullen cited the case of Bigaignon v Powerteam Electrical Services Limited, UD, 939/2010. He agued that the reaction of the company in the case under consideration here is outside of what could be considered a reasonable response.

Mr Cullen also argued that the final sanction of dismissal in this case was unreasonable, because the purpose of a sanction is to be remedial and to bring about an improvement in the behaviour complained off, rather than being entirely punitive.   He submitted that the respondent could have achieved this objective by means of a lesser sanction and, in this way, the complainant could have been given opportunity to improve. Mr Cullen quoted from a case in which I was the adjudicator, that of A Climber v A Tree Management Company, ADJ-00019437.   Here, the complainant was dismissed as a result of an assault on a colleague, and considering all the circumstances, I decided that the dismissal was unfair.

Mr Cullen argued that the complainant’s long service should have had some bearing on the respondent’s consideration of his actions.

He referred to the first incident on November 1st, when the complainant was observed searching AE’s car, and his suggested that this demonstrated a failure on TP’s part to properly deal with a possible disciplinary matter. He claimed that TP’s two statements were not impartial, because he was the investigator in respect of that incident and the one that occurred the following week when AE was assaulted. Mr Cullen suggested that if TP had attempted to resolve the November 1st incident, “with a view to stabilising the situation,” the second incident might not have occurred.

Regarding TP’s role as the investigator of both incidents, Mr Cullen claimed that this created a conflict of interest when TP became “the prosecutor, judge and a material witness” against the complainant. He said that TP was not a detached decision-maker and a flawed process has led to a flawed outcome and a “steam-rolling” of the complainant’s rights.

Mr Cullen challenged the use of the CCTV recording in the investigation into the complainant’s actions.   He said that the respondent’s disciplinary policy has no provision for the use of CCTV footage in a disciplinary investigation and that its use is a breach of the complainant’s rights regarding data protection.

Mr Cullen said that a disciplinary investigation must be fair and impartial material. He claimed that a breach of statutory instrument 146/2000 arises from the finding by TP that the complainant punched AE. He said that the only evidence regarding the assault was AE’s evidence, and TP accepted this. Mr Cullen said that this finding has “entirely corrupted the disciplinary process.” He repeated that the complainant denies the allegation of assault and that the respondent has failed to discharge the burden of proof that he was the assailant.

Evidence of the Complainant

In his direct evidence, the complainant said that he had no problem with AE and he has no idea why he claimed that he assaulted him. The complainant said that he showed TP the grease on the windscreen of his truck, which he described as “a nightmare.” When I asked him how often he found grease on his windscreen, he replied, “a few times.”

The complainant said that he normally does a walkaround check of his truck before his first delivery, but on the morning of November 8th 2019, it was raining and he didn’t do the check. He had nothing further to say and Mr Loughran did not engage in any cross-examining.

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.”

On January 6th 2020, the complainant attended a meeting to inform him about the outcome from the disciplinary investigation. The manager in charge of the disciplinary hearing concluded that,

1. On November 1st 2019, he interfered with his colleague, AE’s car and that,

2. On the balance of probability, he assaulted AE on the morning of November 8th 2019.

The note of the meeting confirms that the complainant is to be dismissed because,

“…these two incidents were extremely dangerous as well as harmful and not acceptable behaviour for an employee of this company.   The workplace for all employees should be a safe and friendly environment for all and mistrust, interference with other people’s property as well as violent behaviour has no place here.”

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

As has been established by the EAT in Looney & Company v Looney, UD 843/1984 and in many other instances and, as it was pointed out by representatives for both sides at the hearing of this complaint, 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 behaviour on November 1st and 8th meets a reasonable employer’s understanding of gross misconduct and, as set out in their letter of January 6th 2020, was “a significant breach of trust and unacceptable behaviour” for which the only reasonable sanctionwas 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:

The complainant did not deny that he opened AE’s car on November 1st without his permission. At the investigation meeting on December 2nd, he explained that he was looking for the source of grease that he thought AE was putting on the windscreen of his truck.

In respect of the incident on November 8th when AE was assaulted, the complainant offered no explanation and, on his behalf, Mr Cullen said that they disputed the findings of the company’s investigation, that proof needs to be substantial and that the complainant’s long service should be taken into account.

Having considered these matters, it seems to me that, if AE had not been assaulted on November 8th, no investigation would have taken place into the fact that the complainant was seen rummaging in AE’s car on November 1st. One could surmise that the reason no action was taken was precisely because the complainant was a long-serving employee and it was apparent that no harm was done. It is impossible to know what might have happened if this incident had been investigated as a disciplinary issue, but I reject any argument that the failure to do so somehow led to the incident on November 8th. It is clear to me that the reason the complainant was dismissed was because his employer reached the conclusion that, based on the substantial evidence available to them, the complainant assaulted AE, inflicting marks and bruises on his face and body. Based on the evidence available to them, it is my view that any reasonable employer would have reached the same conclusion.

I note Mr Cullen’s reference to the Tree Climber decision, issued by me in October 2019, where I concluded that the decision to dismiss an employee who punched his colleague was unfair. In that case, the complainant in question responded to an unprovoked punch from his colleague and, during the disciplinary proceedings, he was remorseful and apologetic. The circumstances of that case are more closely similar to those in UD2196/2011, “An Employee v An Employer” and the “spitting incident,” again where the claimant was provoked, and where the EAT decided that the sanction of dismissal was too severe.

It was clear from the evidence of the transport manager and the office manager that, in their day to day dealings with their 22 employees, considerations of incidents such as this are rare and the prospect of having to dismiss an employee was, to quote Mr Loughran, “tumultuous.” I am certain that a sanction short of dismissal was considered, particularly in view of the fact that the complainant had been employed by the company for 25 years or more. In view of his failure to challenge the facts presented to him, to offer any explanation for what occurred or even to ask for a concession on the grounds of some personal stress, it was not unreasonable to conclude that the complainant simply resorted to violence to deal with what he considered to be a grievance against him. Most reasonable employers in these circumstances would have reached a conclusion that the conduct fell within the normal understanding of “gross misconduct.”

Was the Process Fair?

Mr Cullen argued that there were four specific aspects of the disciplinary process that were flawed:

1. He argued that the transport manager, TP, should not have carried out the initial disciplinary investigation, because he was a witness to the events on November 1st and 8th;

2. He said that the incident on November 1st should have been investigated as a disciplinary matter;

3. He claimed that the company’s disciplinary procedure does not provide for the use of CCTV evidence;

4. He said that there was no evidence to substantiate the allegation that the complainant assaulted AE.

With regard to the first issue, I do not accept that TP had a conflict of interest because he was a witness to the events. He did not witness the assault, and relied on the evidence of AE. While Mr Cullen suggested that TP and AE were friendly, in a business such as the respondent’s, with a small number of employees, managers and employees are inclined in general to be friendly.   From TP’s evidence, I think that he was also friendly with the complainant. TP responded reasonably to the complainant’s allegations of grease on his windscreen, although there was no evidence that there was grease there, which indicates to me that he was patient in his dealings with him. In companies with a small number of employees, there are few options when it comes to carrying out disciplinary investigations, and the complainant’s line manager was the appropriate person to do so.   It is my view that TP was more positively disposed to the complainant than any independent investigator might have been.

The second issue is Mr Cullen’s contention that it was remiss of the company not to investigate the complainant’s search of AE’s car on November 1st. I accept this argument, although, as I mentioned earlier, I understand why nothing was done. My sense is that TP took that view that that might be the end of the grease problem, and AE obviously didn’t push the matter. It is impossible to know what the outcome would have been if TP had spoken to the complainant when he discovered that he searched AE’s car. It is reasonable to speculate that the assault may not have occurred, but it is not reasonable to expect that TP would anticipate that the complainant would act as he did, having had no previous record of this behaviour.

On behalf of the complainant, Mr Cullen argued that the use of CCTV footage has tainted the process, although it is apparent that the CCTV footage was only useful in relation to the car search issue and that there was no CCTV evidence of the assault.   The use of CCTV in a disciplinary process is not provided for in the company’s disciplinary procedure. For this reason, reliance on CCTV footage as evidence of the complainant’s behaviour is not consistent with the “fair obtaining” principle of the Data Protection Acts, which provide that a data controller (the employer) must inform data subjects (employees) that CCTV footage may be used as evidence in disciplinary investigations.

As I have stated above, I am satisfied that the complainant was dismissed because he assaulted AE. As there is no CCTV evidence of the assault, the company reached the decision to dismiss the complainant on the balance of probability arising from other evidence. While CCTV footage was of no benefit to the parties in this particular case, I would encourage the respondent to update its disciplinary procedure and to communicate any changes to the union if it intends to rely on such evidence in the future.

Mr Cullen’s final point concerning his position that the disciplinary procedure was flawed was his argument that there was no evidence to prove that he assaulted AE. I disagree with him on this point, and, aside from my requirement to make a decision based on the standard of reasonableness of a reasonable employer, it is my view that all the available evidence pointed to the complainant as the cause of AE’s injuries.

It is well established that what is required in disciplinary investigations is a fair procedure, which need not be a flawless procedure. The failure to initiate a disciplinary investigation into the complainant’s search of AE’s car on November 1st has introduced a flaw, but, in my view, it has not compromised the overall fairness of the process.

Conclusion

I have considered the case law submitted by Mr Cullen in support of his contention that the decision to dismiss the complainant was unfair. Each case where misconduct is at issue turns on its own facts and I have reached my conclusion here based on the evidence presented to me at the hearing. I note the findings in the case of Samuel J Frizelle v New Ross Credit Union Limited, [1997] IEHC 137, a precedent submitted by Mr Cullen in support of the complainant’s case. Here, Mr Justice Flood held that, in reaching a decision to dismiss, “the decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in light of the explanation offered.” It is apparent that the explanation offered by the complainant regarding his conduct on November 8th 2019 was not sufficient to persuade his employer that he did not assault his colleague and cause him to be injured.

I am satisfied that the employer in this case has taken all the facts into consideration, including what Mr Justice Flood referred to as the “gravity of the complaint and the effect of dismissal” on the complainant, and it is my view that, in the same circumstances, any reasonable employer would have done the same thing. In conclusion therefore, I find that the dismissal of the complainant was not unfair.

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.

The complainant claims that he was entitled to statutory notice of the termination of his employment, in accordance with the Minimum Notice and Terms of Employment Act 1973.

It is the respondent’s case that, because the complainant was dismissed as a result of a finding of gross misconduct, he was not entitled to notice.

Section 8 of the Minimum Notice and Terms of Employment Act 1973 -2015 provides as follows:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

I refer to the determination of the Labour Court in the case of Clogrennane Lime Limited and Joseph Curran, MN/16/1. Mr Curran was dismissed for gross misconduct and his dismissal was determined by the Court to be not unfair. In this context, the Chairman, Mr Foley upheld the decision of the adjudicator that Mr Curran’s claim for statutory minimum notice had failed.

I have concluded here that the dismissal of the complainant was not unfair and I also find that, arising from the incident on November 8th 2019, it was reasonable for his employer to conclude that he should not continue in employment and work out his notice.

I have decided that this claim under the Minimum Notice and Terms of Employment Act 1973 – 2015 is not upheld and that no payment is due to the complainant in respect of pay in lieu of notice.

Dismissal, gross misconduct