Complainant

Respondent

Parties

Paul Gary  Dixon

dfs Trading Limited

Representatives

  Self

 Eversheds Sutherland

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-00040434-001

16/10/2020

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

CA-00040434-002

16/10/2020

The Complainant commenced employment with the Respondent in March 2018. His employment ended when he was summarily dismissed for gross misconduct on 31 July 2020. The Complainant contends that his dismissal was both procedurally and substantively unfair.   

The Respondent submits as follows:

The Complainant commenced employment with the Respondent on 13 March 2018 as a delivery driver. At the time of the incident which led to his dismissal, he was working in the Respondent’s warehouse as he had previously injured his back. The Complainant carried out an important role within the warehouse and was responsible for some health and safety matters. Prior to the incident which led to his dismissal, there were no issues with the Complainant’s behaviour or performance.  

An incident on 2 July 2020, prompted an investigation into the following allegations against the Complainant:

·       Verbally abusive behaviour towards Colleague X and Colleague Y;

·       aggressive behaviour towards Colleague X; and

·       use of aggressive, foul or abusive language and behaviour on company premises.

On 2 July 2020, a fact-finding meeting was undertaken by Shift Manager A, who was assisted by Shift Manager B.  As part of that investigation, a number of statements were also taken from employees in relation to the incident.

Colleague X made a statement on the 2 July 2020 that he had raised an issue with his manager that the Complainant had spoken to him and Colleague Y in an inappropriate manner. The Complainant later asked Colleague X why he was speaking to management and Colleague X replied that the way the Complainant spoke to him was unacceptable. According to Colleague X, the Complainant subsequently called him a “child brain” and a “snowflake”. Colleague X reacted inappropriately in response and called the Complainant “a wanker”. The Complainant rushed towards him, shoulders forward and his fists clenched. Colleague X stated that the General Manager pulled the Complainant away before he reached him. 

Colleague X’s statement was corroborated by Colleague Y’s statement, which alleged that on the 2 July 2020, he and Colleague X were unloading boxes when the Complainant spoke to them inappropriately and demanded that they take out the rubbish. After taking out the rubbish, oil had leaked from the compactor so he and Colleague X went to wash up. Upon returning to finish dealing with the rubbish, according to Colleague Y, the Complainant stormed in and asked why he was working with so many “snowflakes” and “childish brain people”. According to Colleague Y, the Complainant was very aggressive and went towards Colleague X with clenched fists. Colleague Y stated that the General Manager had to pull the Complainant away from Colleague X. 

The General Manager made a statement in relation to the incident, stating that he heard a lot of screaming coming from the Complainant. He then saw the Complainant aggressively move towards Colleague X so he pulled the Complainant away in order to stop the Complainant from attacking Colleague X and Colleague Y. According to the General Manager, while he was pulling the Complainant away from Colleague X and Colleague Y, the Complainant was still attempting to aggressively move towards his colleagues.

Colleague Z, another employee of the Respondent, witnessed the incident between the Complainant, Colleague X and Colleague Y. In Colleague Z’s statement, he stated that “[The Complainant] came over screaming”, “[The Complainant] went to fight Colleague X” and “[The Complainant] showed his fists like a boxer”. Colleague Z stated that the Complainant started the incident and that the Complainant acted in an aggressive manner.

A subsequent fact-finding meeting was undertaken by the General Manager on 14 July 2020.

The Complainant was given an opportunity to respond to the allegations against him.  The Complainant denied the allegations and stated that he had not acted in an aggressive manner.  It was decided that due to the seriousness of the allegations, and the risk of a subsequent physical altercation, the Complainant would be suspended on full pay, pending the outcome of the investigation. 

Disciplinary Procedure

On completion of the investigation, it was found that there was a case to answer and the matter was progressed to the disciplinary stage of the process. The Belfast CDC (Customer Distribution Centre) Manager was appointed to hear the disciplinary matter. The Complainant was informed of this by letter dated 17 July 2020.

A disciplinary meeting was held with the Complainant on 27 July 2020. The Complainant was accompanied to this meeting by a colleague. There had been some discussion about him bringing a colleague based in Belfast. The Complainant had been offered a virtual meeting in which case it would not have been an issue to be accompanied by a Belfast colleague. However, as he wished for an in-person hearing in Dublin, he was asked to bring a Dublin colleague instead. 

The CDC Manager discussed the matters in full with the Complainant. He took time to consider the allegations and the points made by the Complainant. He also interviewed the two other employees to clarify the points made in the investigation. 

The CDC Manager informed the Complainant of the outcome of the disciplinary process by telephone on 31 July 2020. A detailed outcome letter was issued on 4 August 2020.  The CDC Manager explained that he had decided that the allegations had been substantiated and that the Complainant’s behaviour constituted on-going and consistent breaches of company policies. The CDC Manager found that this behaviour amounted to gross misconduct and, accordingly, that he had decided dismissal was the appropriate sanction. The CDC Manager explained that he was concerned as to the different recollections between the Complainant and the other witnesses. The Complainant maintained that he had not physically threatened another employee, whereas the other individuals all said he had done so.  In the outcome letter, the Complainant was advised of his right to appeal within 5 working days.

The Complainant exercised his right to appeal this decision under the Respondent’s disciplinary procedure by way of an email to the Respondent on 31 July 2020. In accordance with the Respondent’s disciplinary policy, an independent appeal manager, the Senior Supply Chain Manager, was appointed to consider the grounds of appeal put forward by the Complainant. The appeal was held on 20 August 2020. 

On 11 September 2020, the Senior Supply Chain Manager, having considered the grounds of appeal submitted, found that the Complainant’s behaviour was not in line with the Respondent’s values and therefore was not acceptable. The appeal manager upheld the decision to dismiss the Complainant.

It is the Respondent’s position that it acted as a reasonable employer in summarily dismissing the Complainant. The Complainant’s conduct was of a particularly serious nature. The Respondent considered other sanctions but the Complainant’s behaviour, in particular, only moments after he had been advised of this behaviour, posed a potential risk to employees and customers.  

The Respondent is clear that it considers such behaviour to be unacceptable. The Complainant’s actions in threatening and acting aggressively towards his colleagues were deemed to be entirely unacceptable and the Respondent cannot be expected to tolerate such behaviour in its workplace.

The Respondent submits that it had a genuine belief that the Complainant was guilty of the alleged wrongdoing. This conclusion was reached following a fair investigation into the matter in which Colleague X’s account of the behaviour was corroborated by Colleague Y and the General Manager. 

The question then arises as to whether the wrongdoing was sufficient to warrant dismissal. In that context, it is well established that, in reaching the decision to dismiss an employee, the employer must have acted as a reasonable employer would have acted in the circumstances. 

The Respondent submits that, having regard to the serious acts of misconduct, it acted as a reasonable employer would have acted in dismissing the Complainant for gross misconduct. Dismissal, the Respondent submits, was within the range of reasonable responses of a reasonable employer in the circumstances. 

Procedural Elements of Dismissal Process

The Respondent asserts that fair procedures were applied to the process leading to the dismissal of the Complainant. The Respondent submits that:

·       at all times during the investigation and disciplinary process, the Complainant was given prior notice of investigation and disciplinary meetings and was made aware of the allegations against him at the outset of the process;

·       at all times during the investigation and disciplinary process, the Complainant was given the opportunity to answer the allegations made;

·       at all times during the disciplinary process,  the Complainant was provided with the right and was accompanied in this disciplinary meeting by his colleague;

·       the Complainant was provided with a right to appeal the sanction of dismissal;

·       the investigation was completed in a fair manner; and

·       the Complainant was aware of the Respondent’s disciplinary and dismissal procedure and that policy was followed by the Respondent throughout the investigation and disciplinary process.

The Complainant has incorrectly submitted that no disciplinary action was taken against Colleague Y and Colleague X. Both individuals were subject to disciplinary review which took place on 21 July 2020. Colleague X was subsequently issued with a written warning arising as a result of his behaviour on 2 July 2020.

Summary of the General Manager’s direct evidence

The General Manager said that prior to the incident on 2 July 2020, he was good friends with the Complainant both inside and outside of work. 

The General Manger said that he was very happy with the Complainant’s performance prior to the incident of 2 July 2020.  The Respondent company needed to recruit a shift manager and the General Manger was hoping to progress the Complainant to that role.  The Manager said that he had no recollection of any issues with the Complainant’s capabilities in 2019.

The General Manager said on 2 July 2020, he had a conversation with the Complainant about the manner in which he spoke to his colleagues.  The General Manager had only returned to the warehouse when he heard screaming.  He went to find out what was happening and found the Complainant acting aggressively towards Colleague X.  The General Manager had to pull the Complainant off Colleague X.  All the while, the Complainant continued screaming. 

Shift Manager A carried out the initial fact-finding meetings.  The General Manager explained that additional facts came to light as a result of the initial investigation into the incident of 2 July 2020 which warranted a further investigation which he conducted on 14 July 2020.

The General Manager decided to suspend the Complainant on 14 July 2020 because the Complainant did not show any remorse after the incident on 2 July 2021 nor did he take any ownership for what had happened.  The Complainant appeared to think that everyone was against him and that the General Manager had orchestrated the investigation statements.

The General Manager said that, as the most senior person in Dublin, he would normally carry out disciplinary hearings and the shift managers would conduct the investigations.  He did not have a peer in Dublin at a similar level.

Summary of the Belfast Customer Distribution Centre (CDC) Manager’s direct evidence

The CDC Manager said that he was asked to chair the disciplinary hearings for three colleagues. 

The Complainant sought to be accompanied to his disciplinary hearing by a colleague from Belfast.  This was deemed unsuitable by the Respondent due to the cost and the Covid restrictions. The Complainant was offered the opportunity to be accompanied remotely by his Belfast colleague or in-person by a Dublin colleague. 

The CCD Manager said that he felt that the Complainant did not take ownership of his behaviour and appeared to blame everyone else for what had happened.  He felt that a repeat of the Complainant’s behaviour could occur.  He noted that the General Manager had only spoken to the Complainant about his interaction with colleagues five minutes before the incident on 2 July 2020.

The CDC refuted the Complainant’s assertion that he had been dismissed due to his back problems and said that this was not a consideration. 

The CDC Manager said that one of the Complainant’s colleagues had received a final written warning as a result of the incident on 2 July 2020.

Summary of the Senior Supply Chain Manager’s direct evidence

The Senior Supply Chain Manager chaired the appeal hearing.

There was some confusion about the Complainant’s request to be accompanied at the hearing.  The Complainant clarified at the hearing that he was happy to continue unaccompanied.

The Senior Supply Chain Manager confirmed that he had considered a lesser sanction.  He had known the Complainant for two years and considered him to be a good colleague.  However, he could not be reassured that the Complainant’s behaviour which had given rise to his dismissal would not happen again. The Complainant’s lack of remorse was also an issue.

The Respondent has cited the following precedents in support of its position:  O’Riordan v Great Southern Hotels, UD1469/2003; Looney & Co v Looney UD843/1984; and, Bank of Ireland v Reilly [2015] IEHC 241.

The Complainant submits as follows:

The Complaint contends that he was dismissed from his employment on 31 July 2020 for alleged gross misconduct after a questionable disciplinary process.

The Complaint contends that he felt very vulnerable in his job following a negative interaction with management in December 2019 concerning his capability after a back operation.

On return of all staff to work following the Covid lockdown, the General Manager appointed the Complainant to the role of acting warehouse supervisor.   Only seven days after he had been appointed to this role, the Complainant was suspended from duty pending an investigation process after the incident which ultimately resulted in his dismissal.

The Complainant relies on the dictum of Kearns J in Morgan v. Trinity College Dublin [2003] 3 I.R. 157 where it was held that a person suspended as a penalty or sanction was entitled to be afforded natural justice and fair procedures before that decision to suspend was taken. The Complainant does not believe that he was afforded natural justice and fair procedures as he was the only staff member who was suspended after the incident took place and before a proper understanding of the facts could be established.

The Complainant alleges that the investigation process was flawed, which in turn lead to a flawed disciplinary process.  The Complainant contends that the General Manager and Shift Manager A should not have been involved in the investigation process as they either heard or saw the incident that led to the Complainant’s dismissal. 

The Complainant believes that all of the investigation statements were orchestrated by the General Manager and that this is apparent from the discrepancies between the statements. The Complainant contends that he was dismissed because he was being paid a driver’s wage but was not capable of fully carrying out this role.  He contends that the Respondent company was always short of drivers and that he was taking up a driving role but, due to injury, could not work as a driver.

The Complainant believes that the decision to dismiss him from his employment was unfair, and that there were no substantial groundsto justify his dismissal, other than fabricated stories. While he fully accepts that a conversation did take place on the factory floor between himself and Colleague X and Colleague Y, he does not accept that he was aggressive or that his fists were clenched.

Furthermore, the Complainant submits that the fact that no disciplinary action has been taken against Colleague X and Colleague Y for essentially engaging in conduct similar to that which led to his dismissal is unfair.

Summary of the Complainant’s direct evidence

In response to a question from the Respondent’s representative, the Complainant replied that he did not believe that his actions on 2 July 2020 warranted any sanction.  He did not believe that he had done anything wrong, 

When asked why the Respondent had reached a different conclusion, he responded that it was due to the fact that the Respondent had a shortage of drivers and although he had been recruited as a driver, he could no longer work as one due to a back injury. He was being paid a driver’s rate but was not doing the job.  As a result, he felt very vulnerable in his job in 2020.

The Complainant confirmed that he did not raise any grievance about the negative interaction with his manager in December 2019 because the interaction was with his boss.

When it was pointed out to him that the manager had said that he saw a role for the Complainant as a shift manager, the Complainant said that he had no insight into the future shift manager’s job. 

Unfair Dismissal

 Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

(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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The Complainant was dismissed for gross misconduct following an altercation with a colleague.  The Complainant contends that he was denied fair procedures and natural justice. The Complainant also stated that the sanction was excessive and disproportionate to what had occurred.

Procedural Issues

The Complainant outlined a number of procedural issues which he contended rendered the process unfair. I am of the view that the most serious of these procedural issues was the involvement of the General Manager in the incident on 2 July 2020 and the subsequent investigation and the involvement of Shift Manager A in the investigation. 

The Supreme Court in Glover v BLN Limited(1973) IR 388 decided that where there was provision in a contract of employment for some form of disciplinary procedure, it was an implied term of the agreement that any enquiry held under it should be conducted fairly. It is quite clear from the case law of the superior courts, that there is no fixed standard of natural justice which lays down how certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances.  Furthermore, Frank Shortt v Royal Liver Assurance Limited (1998, 3571), sets out that the disciplinary process may not be perfect but it should come within the perimeter of what could reasonably be considered a fair response by the employer in the circumstances. This was also detailed in Mooney v An Post ([1994] E.L.R. 103), where what exactly is required of an employer to satisfy the requirements of natural justice may differ from case to case.   In that case, Keane J. stated that the two principles of natural justice, namely “audi alterem partem and nemo iudex in causa sua cannot be applied in a uniform fashion to every set of facts”. Therefore, while employers are required to afford natural justice and fair procedures to employees when carrying out disciplinary procedures, regard must be had for the particular circumstances of the case to ascertain what the requirements of natural justice and fair procedures demand in the particular circumstances. If the process followed by the employer, while not entirely faultless, is within the scope of what could be considered a reasonable response in the particular circumstances, then the employer's actions will be deemed to be acceptable.

I note that the General Manager and Shift Manager A were only involved in the investigation stage and were not involved in the disciplinary or appeals process.  I also note that the CDC Manger reinterviewed Colleague X and Y during the course of the disciplinary process.  I am of the view, therefore, that any procedural flaws were not sufficiently grave as to imperil the Complainant’s right to fair procedures.

Suspension

In Bank of Ireland v Reilly [20145] IEHC 241, Noonan J found that -

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he was then) in Morgan v Trinity College Dublin [2003] 3 IR 157 there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.”

Thus, even a holding suspension ought not be undertaken 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, interference 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 seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.

The corollary presumably therefore is that an employee ought not be suspended where suspension is not necessary to facilitate these matters.”

I note in the minutes of the follow-up fact-finding meeting that the Manager had with the Complainant on 14 July 2020, it is recorded that the Manager gave the following reason for suspending the Complainant:

“I’m really concerned about conduct.  I spoke to you previously about how you were speaking to the guys, and I asked you to speak to them respectfully.  I don’t feel that you’ve taken that onboard, and the way you reacted makes me worry that you will physically attack someone, which I simply can’t risk, therefore, I will be placing you on suspension until further notice, as a precautionary measure.”

I note that the Complainant was suspended after the initial investigation had taken place and, in light of the facts arising therefrom, the General Manager was concerned that the Complainant might repeat the impugned conduct.  Accordingly, I am of the view that the suspension of the Complainant was appropriate in all the circumstances of the case.

Gross Misconduct

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

“Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.”

I am of the view that, in all of the circumstances of this complaint, the altercation that occurred on 2 July 2020, immediately after the Manager had asked the Complainant to treat his colleagues with respect, was “very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer“.  Accordingly, I find that the actions of the Complainant amounted to gross misconduct.

Band of Reasonable Responses.

In relation to the Complainant’s summary dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

 “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

Having considered the matter, I find that the decision to dismiss the Complainant was within the range of reasonable responses of a reasonable employer. The Respondent sought witness statements and established through its investigative process that what had occurred amounted to gross misconduct.   

I do not accept the Complainant’s assertion that the fact that he was not carrying out driver duties, although he was paid as a driver, was a consideration in the Respondent’s decision.  In this regard, I am struck by the fact that the Respondent had assigned additional responsibilities to the Complaint immediately before his dismissal with a view to appointing him to the role of shift supervisor at a future date.

It has long been accepted that it is not the role of the Adjudication Officer to re-investigate a matter that led to the dismissal of a complainant.  Rather it is the role of the Adjudication Officer as set out by the EAT in Looney & Co. Ltd. V Looney UD843/1984 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 decisions are to be judged.”

I am of the view that any employer faced with the same circumstances to those that pertained in this case would have acted in the same way.  I therefore, find that the conclusion reached by the Respondent in relation to the conduct of the Complainant was reasonable in all of these circumstances.

Having considered all of the submissions of both parties and the evidence adduced at the hearing of this complaint, I declare that the dismissal of the Complainant was both procedurally and substantively fair.  I decide, therefore, that this complaint is not well founded.

The Complainant contends that he was summarily dismissed from his employment, and that he did not receive the appropriate payment upon the termination of his employment despite that fact that his contract of employment entitled him to one months’ notice.

The Respondent submits that the Complainant had no entitlement to receive notice or payment in lieu thereof as he was dismissed for gross misconduct. 

In this regard, the Respondent relies on Section 8 of the 1973 Act which states: “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.”

In addition, the Respondent relies on Section 3.1.3 of its Disciplinary Policy which states that: 

“If the offence is sufficiently serious as to amount to Gross Misconduct, or if there is still further misconduct or failure to improve, dismissal or some other action short of dismissal such as demotion may apply. Dismissal will be with or without notice depending on the circumstances and nature of the offence.” 

The Respondent submits that, having regard to the relevant legislation and to its own disciplinary policy, the Respondent was entitled to dismiss the Complainant without notice or payment in lieu of 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 Labour Court upheld the decision of the adjudicator that Mr Curran’s claim for statutory minimum notice had failed.

I have found above that, arising from the incident on 2 July 2020, it was reasonable for the Respondent to dismiss the Complainant on the grounds of gross misconduct.  I decide, therefore, that this complaint is not well founded.

Unfair dismissal – gross misconduct – minimum notice