Complainant

Respondent

Anonymised Parties

A complainant

A Retail employer

Representatives

Betty Dillon Mandate Trade Union

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-00035328-001

18/03/2020

The complainant was employed as a sales assistant with a nationwide retail employer. Following an incident on 5 September 2019, an investigation took place which resulted in the complainant being dismissed on 21 October 2019. The complainant was suspended on full pay during the investigation.  Two investigatory meetings took place followed by an investigatory outcome meeting.  This latter meeting determined that the matter should go forward to a disciplinary hearing.  The complainant was represented throughout the process.  The complainant exercised his right to appeal and was represented throughout this process too.

This hearing was held remotely.

The complainant submitted that there were no procedural defects with the investigation process but rather that the sanction was a harsh and disproportionate outcome vis a vis a once-off incident.

The complainant submitted that there were human circumstances involved from outside the work arena, and that it followed what the complainant perceived as repeated errors with his payslips.

He admitted that he caused damage but contended that there was not as much damage as the company indicated.  Of the four elements outlined in relation to the incident, he accepted responsibility for two of them but did not accept responsibility for the remaining two elements of damage.  He submitted that he would not describe his behaviour as aggressive but rather that his behaviour was “almost to the point of not being able to think”.  He outlined how he needed to go to the canteen to calm down.

The complainant conceded that his conduct amounted to improper behaviour but did not amount to aggressive behaviour.  He conceded that he is a big framed person and might not be aware of his own strength.

The respondent submitted that the dismissal was both substantially and procedurally fair.  The respondent submitted that the incident of 5 September could be referred to as a rampage and that there was violence used when company assets were broken or destroyed.  The respondent submitted that there were four elements to the damage including breaking a door, a display cabinet and throwing stock across the shop floor and these elements were considered as part of the deliberations in the investigative process and the subsequent disciplinary process.

The respondent submitted that the complainant was dismissed following a fair process in accordance with its Company Disciplinary Procedure and Serious Misconduct Procedure.  There was no issue raised as to the process it followed and that the complainant was represented throughout.  As regards the sanction, the respondent submitted that no company can tolerate acts of aggression towards staff, breaches of health and safety procedures and wilful damage to company property.

The respondent submitted that under Section 6(4)(b) of the Unfair Dismissals Acts 1977 “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” and that in this regard the dismissal resulted wholly from the conduct of the employee.  It further submitted that in the all the circumstances the sanction of dismissal was fair and warranted.

I note that it is common case that the process was conducted in a fair manner and that the complainant was represented throughout. Having heard evidence of both parties, I am satisfied that although the complainant accepted that his behaviour was ‘improper’, the respondent’s interpretation of the behaviour was that it was aggressive.  Given that the complainant conceded that his is a big framed man and may not be aware of his own strength, on balance, I am inclined to accept the respondents view of the behaviour displayed by the complainant.

I note that the complainant raised the issue of his previous behaviour being taken into account at the time of the appeal and that he submitted that none of his colleagues had indicated to him before this time that he could be aggressive.  Having considered this issue and the documentation regarding the appeal hearing and outcome closely, I am satisfied that this issue did not form part of the reasoning for upholding the original decision. I find that the process of dismissal was not tainted by this issue.

On the basis of the foregoing and on the written and oral evidence presented in relation to this case, I find that the complainant was not unfairly dismissed.

Arising from my findings above, my decision is that the complainant was not unfairly dismissed.

Unfair dismissal, aggressive behaviour