ADJ-00031768

Complainant

Respondent

Parties

Pierce  Lynch

Gaelform Ltd

Representatives

  In person

Mary Fay B.L. instructed by Crowley Millar Solicitors.

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-00042327-001

04/02/2021

The complainant was employed by the respondent as a Welder from March 2019 until his dismissal for gross misconduct on 1st February 2021 following a physical altercation with a colleague on 14th January 2021. The complainant lodged his complaint to the Workplace Relations Commission (WRC) on 4th February 2021 claiming that he was unfairly dismissed.

The respondent contends that the dismissal was not unfair. The respondent stated in its written submissions that the complainant was dismissed following an investigation and disciplinary process that was carried out in line with the Company’s policies and procedures. The respondent stated that the complainant was afforded fair procedures at all times and was entitled to appeal the outcome of the process which he did not do.

The respondent stated that having carried out the investigation process, it was deemed that a disciplinary process should commence in relation to the incidents of 14th January 2021. The respondent confirmed that witness statements were taken from all involved and were considered when deciding that both the complainant and his colleague were guilty of gross misconduct and should be dismissed.

The respondent stated that the complainant accepted that he pushed his colleague, but it was in self-defence. The statement of the complainant’s colleague was that it was the complainant who had pushed him and that he himself was acting in self-defence. The respondent contends that it acted consistently in its decision to dismiss both employees as they had both accepted, albeit with different recollections that each had assaulted the other.

The respondent cited the cases of Looney and Co Ltd v Looney UD843/1984, McKelvey v Iarnrod Eireann, unreported [2019] IESC 79, British Leyland UK Ltd v Swift [1981] IRLR 91 at 93, Allied Irish Banks plc v Purcell [2012 23 ELR 189, Governor and  Company of Bank of Ireland v James Reilly, (2015) IEHC 241, A Betting Shop Manager v A Betting Company (ADJ-00020525), a Warehouse Team Leader v Fresh Food Business (ADJ -00012944), Transdev Light Rail Ltd v Adil Shafiq (UDD1847), Hestor v Dunnes Stores Ltd [1990] ELR 12, James Campbell v Associated Hardware PLC (UD2305/2009), Sheehan v Continental Administration Company Limited, UD858/1999 in support of its position that throughout the process the complainant was afforded fair procedure and that the respondent acted in a consistent and reasonable manner in applying its procedures to the process and in its decision to dismiss the complainant for gross misconduct.

The complainant contends that the dismissal was unfair. The complainant, in his oral and written submissions to the WRC described the incident that took place on 14th January 2021. The complainant stated that two brothers had been having a disagreement earlier that day and one had left the premises. With management’s agreement the complainant drove after his colleague and brought him back to the Company premises. This colleague was then assigned to work near the complainant’s workstation. The complainant stated that at a short time later the colleagues brother approached his workstation in a forklift truck and continued to argue with his brother. The complainant stated that he intervened to bring an end to the interaction when he was approached by the colleague on the forklift and received an attempted headbutt. The complainant accepts that he pushed his colleague at this point but only in self-defence in relation to the headbutt. The complainant stated that his colleague then punched him in the face and on the side of the head and he momentarily blacked out as a result.

The complainant stated that his dismissal was unfair as he was acting in self-defence when he pushed his colleague. The complainant confirmed that he was subject to an investigation and disciplinary process and was dismissed for gross misconduct. The complainant acknowledged he did not appeal his dismissal but said he had no faith in the process and that he was unhappy with the person who was conducting the disciplinary process. The complainant accepted that he did not formally raise any objections in relation to the disciplinary process.

The complainant is seeking compensation in relation to his complaint.

The respondent contends that the dismissal was not unfair. The complainant contends that he was unfairly dismissed and is seeking compensation in relation to his complaint.

The Applicable law

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

6(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.

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 thatno 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.’

Band of reasonable responses.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, 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.”

Mitigation of Loss

The complainant provided written and verbal details in relation to his efforts to mitigate his losses following his dismissal. The complainant is in permanent employment since February 2022.

Between February 2021 and February 2022, the complainant was unemployed intermittently for approximately six months and employed for the other six months. The pattern of the complainant’s unemployment would indicate that after a short period of unemployment, he was successful in obtaining new employment. For varying reasons, such as work suitability and caring responsibilities, periods of employment ended and were followed by a period of time in receipt of Jobseekers benefit. This pattern continued until the complainant found suitable permanent employment in February 2022. On the basis of the complainant’s submissions in this regard, I satisfied that he made sufficient efforts to mitigate his loss following his dismissal.

Conclusions

In this case, the undisputed incident that took place on 14th January 2021 resulted in both employees being dismissed for gross misconduct having engaged in a physical altercation with one another. The complainant accepted that he pushed his colleague but only after his colleague invaded his personal space and attempted to headbutt him. The complainant contends that he acted in self-defence.

Summary dismissal for gross misconduct arises when an employee has behaved in a way which the employer could not be reasonably expected to tolerate. As mentioned above, such behaviour includes incidences of physical assault.

In relation to the investigation and disciplinary process, there were no procedural deficiencies highlighted by the complainant at the time or at the adjudication hearing and I note that the complainant did not appeal his dismissal as he said he did not have any faith in the process.

In all of the circumstances of this case, I find that the complainant’s actions amounted to gross misconduct in relation to the altercation with his colleague. I note that a fair and transparent investigation and disciplinary process took place and that the decision of management in dismissing the complainant (and his colleague) was proportionate and was within the range of reasonable responses of a reasonable employer.

On that basis I find that the complainant was not unfairly dismissed.

For the reasons outlined above, I find that the complainant was not unfairly dismissed. Accordingly, the complaint is not well founded.

Unfair Dismissal