FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : STARRUS ECO HOLDINGS LIMITED T/A PANDA / GREENSTAR (REPRESENTED BY JASON MURRAY, B.L.) - AND - MR BEN MADICHIE (REPRESENTED BY PATRICK O'RIORDAN, B.L., INSTRUCTED BY HEALY O'CONNOR SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00027592 CA-00035182-001 The Complainant was employed by the Respondent as a driver from October 2017 until his dismissal in February 2020. The Adjudication Officer decided that the Complainant had been unfairly dismissed and she made an award of €29,960 in compensation. Summary position of the Appellant The Appellant submitted that the Complainant had been dismissed for gross misconduct and that he had enjoyed the ‘full panoply’ of fair procedures and due process. The Complainant assaulted his direct line manager on 26thNovember 2019. On the same date he refused to take an order from his direct line manager and on the same date also he verbally abused his direct line manager. The Appellant submitted that the matter before the Court related to whether the process put in place to dismiss the Complainant was fair. In support of the contention that the procedure was fair the following timeline was submitted to the Court: •26thNovember 2019 – Complainant assaults line manager (TMcL) and is engaged in wholly unacceptable behaviour in the workplace •28thNovember 2019 – TMcL informs his direct line manager Mr DO’B who informed Mr RH •22nd January 2020 – Complainant returns to work after an absence from 26thNovember 2019. •23rdJanuary 2020 – Complainant receives a letter inviting him to an investigation meeting •24thJanuary 2020. Mr RD undertakes an investigation meeting with the Complainant. The investigation includes an interview with an independent witness and TMcL •28thJanuary 2020 – Mr PW writes to Complainant to inform him that the matter is progressing to a disciplinary procedure. •29thJanuary 2020 – Disciplinary hearing held with Mr PW •3rdFebruary 2020 – the Complainant dismissed from his position for gross misconduct •6thFebruary 2020 – the Complainant submitted his appeal •19thFebruary – Mr CN conducted an appeal hearing •2ndMarch 2020 – the Complainant notified that his appeal has been unsuccessful. On 26thNovember 2019 the Complainant returned to the yard in an irate and agitated state. He parked his truck in an unusual place. He had issues relating to the window wipers of his truck and was approached by his line manager TMcL who asked him to bring his truck to the garage in order that the mechanics might replace the wipers. TMcL continued his work and after a period noticed that the Complainant was still sitting in his truck in the wrong position in the yard. He approached the Complainant again. After some time, the Complainant had not moved his truck and TMcL approached him again. The Complainant protested and asked why the truck could not be repaired in the yard. Ultimately the Complainant approached the manager in an irate manner. The manager, TMcL, turned to leave the situation as the Complainant had become completely irate. As he turned to leave he was shocked when suddenly, and without warning, the Complainant grabbed the arm of his jacket and pulled him back with some force. TMcL was shocked and expressed his discontent at the actions of the Complainant and told him not to ever touch him again. TMcL left and the Complainant subsequently finished his shift. The Complainant left work on the 29thNovember 2019 and did not return until 22ndJanuary 2020. By letter dated 23rdJanuary RD, a manager with the Appellant, wrote to the Complainant informing him that he was suspended from work pending investigation of an allegation of gross misconduct. The misconduct was detailed as an assault on his direct line manger on 26thNovember, a refusal to take an order from his line manager on the day, verbal abuse of his line manager and being absent without leave from 29thNovember 2019 to 6thDecember 2019 and again from 2ndto 22ndJanuary 2020. In that letter the Complainant was invited to attend a disciplinary meeting on 24thJanuary. A copy of the Appellant’s disciplinary procedure was appended to that letter. RD held an investigation meeting with the Complainant on 24thJanuary 2020. At that meeting RD put the allegations to the Complainant and the Complainant expressly acknowledged that he assaulted TMcL and denied any other wrongdoing. His admission of assault was recorded in the note of the meeting wherein the Complainant is recorded as saying
On 28thJanuary 2020 PW, a manager of the Respondent, wrote to the Complainant to advise him that he had decided to initiate a formal disciplinary procedure against him. The letter advised the Complainant that the disciplinary procedure would deal with allegations that he had assaulted his direct line manager, refused to take an order from his line manager to take his truck to the garage, been absent without leave and that he had verbally abused his line manager. The letter advised the Complainant that these matters were a potential example of misconduct for example bringing the company name into disrepute; or gross misconduct, for example breach of confidence relating to the Company’s name. The Complainant was invited to a disciplinary meeting on 29thJanuary 2020 at which PW would independently adjudicate on the matter. He was advised that he could bring a representative to the meeting who could be a work colleague of his choice. The letter also advised the Complainant that there would be a right of appeal from the decision of PW. At that meeting the manager, PW, read the minutes of the investigation meeting to the Complainant and ensured that the Complainant had received all relevant documentation to the meeting. The complainant stated that“I did grab Tommy but not forcefully, it was by his sleeve”. In the course of the meeting PW said to the Complainant
The Complainant appealed that decision and, in doing so, made wild allegations against TMcL specifically. The appeal was heard on 19thFebruary 2020 by CN. At that hearing the Complainant asserted that he had never touched TMcL. CN upheld the decision to dismiss. The Appellant submitted that the matter for the Court to consider was whether the process followed by the Appellant in dismissing the Complainant was fair The Appellant submitted that the process was fair and that the decision to dismiss the complainant was reasonable in circumstances whereby his actions clearly met the requirements to be held as gross misconduct. The Appellant drew the Court’s attention toAllied Irish Banks PLC v Brian Purcellwhere Linnane J drew on the statement of Lord Denning inBritish Leyland UK LTD v Swift [1981] I.R.L.R. 91that
Testimony on behalf of the Appellant Testimony on behalf of the Appellant was given by Tommy McLoughlin who is a transport manager of the Appellant and, at the material time, was the line manager of the Complainant. He stated that on 26thNovember 2019 he supervised the day-to-day transport operations of the Appellant. The Complainant returned to the yard at 5.00pm or 5.30pm and would have returned on five or seven occasions earlier in the day. The Complainant raised an issue with the wipers on his truck during the day and on his return at 5.00 or 5.00pm. At that time there could have been 40 vehicles parked up and the Complainant parked up in an unusual place. The witness asked the Complainant to take his truck to the garage to get his wipers fixed. The witness returned 10 or 15 minutes later and noticed that the truck had not been returned to the garage. He spoke with the Complainant and, at a point, decided to walk away but the Complainant pulled him back. The witness did ‘lose the rag’ and an exchange of ‘verbals’ took place. Only the Complainant and Mr Mc Loughlin were present. The witness could not say if anybody else witnessed the event and no cctv was active in the area. The witness reported the matter to a manager that evening and one or two days later Mr RH, a manager sat him down and asked him about it. On cross examination he agreed that the Complainant was good at his job and did work long hours. On the day in question the Complainant did have issues with the wipers and had reported that during the day. The witness said that he had assumed that the wipers had been fixed until his engagement with the Complainant at 5.00pm or 5.30pm. The witness agreed that a verbal exchange had occurred at a point in his conversation with the Complainant and that the witness had, similarly to the Complainant, used strong language in the course of that exchange. He stated that no process was initiated or took place to address any issue as regards alleged verbal abuse by him of the Complainant. The witness confirmed that he had made no written complaint against the Complainant but that he had reported it to Mr RH, a manager. He confirmed that he had had no involvement in the decision to suspend the Complainant albeit he was, three or four days before the Complainant returned to work in January 2021, instructed to remove the Complainant from the roster. Summary position of the Complainant. The Complainant had a major fault on his truck on 29thNovember 2019. There had been heavy rain throughout the day, and he had very poor visibility as a result of a wiper fault. He had had similar problems previously and had, on many occasions, advised his manager TMcL. On the day he began his shift at 4.45am and finished at 5.00pm. Following the incident which gave rise to his dismissal he attended for work on the three subsequent days and was absent from work thereafter. He returned to work on 23rd January 2020 on which day he was informed by Mr RD that he had been suspended. Mr RD advised him of an investigation meeting to take place on the 24thJanuary with respect to four matters. He attended that meeting which was conducted by Mr RD, and on the 28thJanuary 2020 he was asked to attend a disciplinary hearing to be held on the 29thJanuary. He attended that hearing conducted by PW. On 3rd February was advised of the decision to dismiss him based on three grounds. He appealed that decision and attended an appeal hearing with Mr CN on 12thFebruary 2020 and his dismissal was confirmed on 2ndMarch 2020. No formal complaint was made by TMcL as regards the events of 26thNovember. In addition the investigator, RD, failed in his duty to take a statement from Mr E who was a witness to the events on 26thNovember. No disciplinary action was initiated against TMcL in respect of his verbal abuse of the Complainant on the 26thNovember. The Complainant did not assault the line manager and neither did he grab his jacket. He merely touched the sleeve of the manager. The contact between the Complainant and the line manager on the day fell far short of any definition or understanding of assault. The fact that the decision maker in the dismissal, PW, revealed during the disciplinary hearing that he had already decided the matter is evidence of pre-determination of the matter prior to completion of the hearing. The decision to dismiss was disproportionate to the matter and the process followed by the Appellant failed to uphold natural law and justice. Testimony of the Complainant The Complainant said that he had been assigned the same truck for a number of months prior to the 26th November 2019. On that day he had commenced work at 4.45 in the morning and was forced because of wiper problems, to pull into the side of the road in rain at 5.00am. He repeatedly notified the yard of the wiper problems on his truck When he returned at 5.00pm he parked the truck and when he saw TMcL he called him over. He engaged with TMcL for some minutes in relation to the fault on his truck and eventually TMcL made to walk away. As he did so the Complainant touched him on his hand and TMcL became upset. He used abusive language at the Complainant. He worked on the Wednesday, Thursday and Friday of that week and had no issues with TMcL. On foot of the death of his father he was absent from work for a period and returned to work on 23rdJanuary 2020 when he was advised by RD that he was suspended and told to attend a disciplinary meeting on the 24th January. He received no statements in advance of that meeting. RD took notes as the meeting progressed. He was then invited by PW, a manager of the Appellant, to attend a disciplinary meeting. On the day of that hearing he asked a colleague to accompany him to the hearing. PW told the Complainant that he did not want to see the Complainant’s colleague who was to accompany him to the meeting. As a result of that, the colleague did not accompany the Complainant. At that meeting Mr PW read out the statement of TMcL. The Complainant asked PW why he had not interviewed Mr E who was a witness to events. PW said he would get to that later. PW never advised him that he was at risk of losing his job. PW shouted at the Complainant during that meeting. On 3rdFebruary 2020 the Complainant received a letter informing him that he was dismissed. He appealed that decision and was invited to an appeal hearing to be convened by CN. On the day of that hearing he asked a colleague to accompany him to the hearing. However, in advance of that meeting a lady manager told him and his colleague that CN did not want the colleague to be at the meeting. As a result of that the colleague did not attend the hearing. Discussion and conclusions The Appellant has set out a submission describing a series of events. That submission and evidence for the Appellant is to the effect that an interaction, which included physical contact and verbal abuse, took place with the Complainant. The evidence of the line manager on behalf of the Appellant confirms that he himself engaged in similar use of language to the Complainant during that interaction. There is no submission made by the Appellant that the line manager was disciplined in any way as a result of his use of robust language during the incident. The line manager confirmed in evidence that no disciplinary procedure was initiated against him as a result of any aspect of the incident. The submission of the Appellant confirms that the Complainant’s verbal abuse of his line manager was a factor in the decision to initiate disciplinary proceedings against him. The letter of dismissal confirms that verbal abuse was a factor in the ultimate decision to dismiss him. The Complainant has given evidence that he attended three meetings as part of the disciplinary process undertaken. The Appellant has provided the Court with a copy of its disciplinary procedure. That procedure provides for a right to be represented by a work colleague, independent adviser, union representative (where applicable) etc at all stages of the disciplinary procedure. The evidence of the complainant was that on the occasion both of the disciplinary meeting convened by PW and the appeal hearing convened by CN, he asked a colleague to accompany him in accordance with the procedure of the Appellant. However, on the occasion of the disciplinary hearing PW advised him that the colleague would not be required and consequently that colleague did not attend the hearing. On the occasion of the appeal hearing, another manager of the Appellant advised him that CN did not want the colleague at the meeting and consequently the colleague did not attend that meeting. No evidence or submission on behalf of the Appellant contradicted the evidence of the Complainant in these respects. The Complainant gave evidence that PW did not advise him at the disciplinary hearing that his employment was at risk. No evidence or submission of the Appellant contradicted this evidence of the Complainant. The Complainant submitted that the note of the disciplinary hearing convened by PW compiled by PW demonstrated that PW had made a decision on the matter prior to the conclusion of the hearing which had been convened in order to hear from the Complainant. That note records PW saying to the Complainant during the hearing
The submission of the Appellant was to the effect that the physical interaction between the Complainant and his line manager amounted to an assault by the Complainant. The interaction, on the evidence of the Complainant and his line manager, amounted to contact by the Complainant with the sleeve of the manager’s coat or his hand which caused the manager to turn around towards the Complainant. The Appellant, in response to questioning by the Court, submitted at the hearing that the decision makers in the disciplinary and appeal hearings did consider alternatives to dismissal. No submission or evidence was offered however to clarify to the Court the nature of that consideration or the nature of the reasoning which ultimately led the decision maker in the decision to dismiss or to conclude that dismissal of the Complainant, as distinct from the imposition of any other lesser disciplinary sanction, was the proportionate response to the events at issue in the disciplinary procedure. No evidence or submission was offered by the Appellant to assist the Court in understanding the reasoning of the decision maker on appeal in arriving at the decision to uphold the original decision to dismiss. The disciplinary procedure of the Appellant makes clear that an employee will‘not normally be dismissed for a first breach of discipline, except in the case of gross misconduct’. The handbook setting out the disciplinary procedure to employees identifies assault as an example of ‘major misconduct’. That handbook also identifies ‘physical assault’as gross misconduct. The handbook advises employees that disciplinary action taken against an employee in the case of an instance of ‘major misconduct’will be based on a staged procedure which will leave open the sanction in the event of a first occurrence of such misconduct of a written warning or a final written warning. That same procedure identifies the sanction for a first instance of‘gross misconduct’as dismissal. It is clear that, according to the disciplinary procedure of the Appellant, assault can be viewed as ‘major misconduct’or ‘gross misconduct’. In this case the Appellant submitted that the behaviour of the Complainant amounted to ‘gross misconduct’. No evidence or submission was offered by the Appellant as to how the decision makers at first instance and on appeal decided that the particular physical interaction between the Complainant and his line manager amounted to an assault which could be regarded as of such significance as to amount, alone or in conjunction with other alleged misconduct, to ‘gross misconduct’rather than the lesser offence of ‘major misconduct’. The Appellant did not offer evidence by either decision maker in the disciplinary procedure and neither did the Appellant offer a submission based on the disciplinary procedure which would allow the Court to understand the basis for placing the physical interaction between the Complainant and the line manager in the category of gross rather than major misconduct. The Complainant returned to work on 23rdJanuary 2020. The evidence of the Appellant’s line manager was that approximately three or four days before the Complainant’s return he was instructed by RD to take him off the roster. On the Complainant’s return to work on 23rdJanuary he was advised by RD that he was suspended and invited by RD to attend an investigation meeting with RD the following day. On this account of events it is clear to the Court that the investigator, RD, prior to commencing his investigation of the alleged misconduct of the Complainant, decided that the Complainant should be suspended. The Complainant was, according to his uncontradicted evidence, not advised in advance of the investigation meeting that his employment was at risk and he was not advised that he could be represented or accompanied at that meeting. It was common case that the investigator, RD, made no report of his investigation and confined himself to a note of the proceedings on the 24thJanuary. The Court has weighed the evidence and submissions of the parties. There is no doubt that physical interaction took place between TMcL and the Complainant. The Court is not, as a result of the absence of evidence from either individual, in a position to determine the reasoning of the decision makers in respect of this physical interaction in terms of their assessment of the contribution that physical interaction made to their decision to dismiss and to uphold the decision to dismiss on appeal. Similarly, the Court notes that the letter of dismissal stated that verbal abuse by the Complainant was a factor in the decision to dismiss. The Court is, as a result of the absence of evidence in that respect from the decision makers, unable to determine the degree to which this factor contributed to the decision to dismiss. The Court does note however the evidence of both the line manager and the Complainant that the line manager engaged in strong language in his interaction with the Complainant and the evidence that no disciplinary procedure was initiated against the line manager as a result. The uncontradicted evidence of the Complainant to the Court was that he was not advised at the outset of the investigation and disciplinary procedure that his employment was at risk. The invitation to the investigation meeting to be convened by RD made no reference to a possibility of dismissal and the note of the investigation meeting compiled by Mr RD made no reference to dismissal as a risk. The invitation to the disciplinary hearing to be convened by PW made reference to misconduct and gross misconduct while giving the examples of‘breach of confidence relating to the company name’and‘bringing the name of the company into disrepute’, but failed to explain to the Complainant either the relevance of these examples to any matter involving him or to highlight to him that the procedure being engaged could result in his dismissal. Where the Complainant has given evidence that is uncontradicted by evidence or even submission on behalf of the Appellant the Court cannot but accept the evidence of the Complainant. Therefore, the Court concludes as a matter of fact that the Complainant was invited to participate in an investigation and disciplinary procedure without having knowledge that his employment was at risk. Similarly, the Court concludes that the Complainant was prevented by PW and CN from being represented at both his disciplinary and appeal hearings despite the fact that the disciplinary procedure of the Appellant makes provision for such representation. Similarly, the Court accepts the evidence of the Complainant that PW shouted at him in the course of the disciplinary hearing which led to his dismissal. It is significant also in the view of the Court that the record of the disciplinary hearing compiled by PW records PW articulating conclusions to the Complainant as regards the matters under consideration during rather than after the disciplinary hearing. A lack of consistency by the Appellant in addressing the language used by both the Complainant and his line manager during their interaction on 26thNovember 2019 is a matter supported by the evidence of both individuals to the Court. Having regard to all of the above the Court concludes that the procedure engaged by the Appellant to address the events of 26thNovember 2019 lacked the basic tenets of natural justice or fair procedure. In particular, the failure to advise the Complainant explicitly of the risk to his employment, the obstruction of his work colleague from attending two hearings, the articulation of conclusions by the first decision maker during the hearing and the Complainant’s evidence that the first decision maker shouted at the unrepresented Complainant during the hearing all combine to undermine the procedure engaged by the Appellant. The failure of the Appellant to proffer evidence from either the first decision maker or the decision maker on appeal has, in the view of the Court, resulted in the Appellant being unable to discharge the burden of establishing that the decision to dismiss the Complainant was proportionate to the alleged offence or that either decision maker considered any penalty other than dismissal. For all of these reasons the Court concludes that the Appellant has failed to discharge the burden resting upon it to establish that the dismissal was fair and, consequently, the Court concludes that the dismissal of the Complainant was unfair. Having regard to the passage of time and the submissions of the parties, the Court concludes that the appropriate redress in this matter is compensation. The Court notes the earnings of the Complainant prior to his dismissal are agreed by the parties to have amounted to €40,000 per annum approximately. The Court takes into account the evidence presented to the Court by the Complainant of his efforts to mitigate his loss between the date of his dismissal and his commencement of an education programme in September 2020. The Court also notes the absence of efforts by the Complainant to mitigate his loss between September 2020 and May 2021 and from May 2021 until he secured employment in November 2021. Having regard to these matters therefore, the Court measures the award which is just and equitable in all of the circumstances as €40,000. Decision The Court decides that the Complainant was unfairly dismissed and makes an award of €40,000 in compensation for the financial loss suffered by him attributable to his dismissal. The Court considers that an award in this amount is just and equitable in all of the circumstances. The decision of the Adjudication Officer is varied. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
