Complainant

Respondent

Parties

Adrian  Heller

Floortech Industries Ltd

Representatives

SIPTU

 Hallissey & Partners, Solicitors

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-00045027-001

05/07/2021

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

CA-00045027-002

05/07/2021

The Complainant worked for the Respondent company for approximately four (4) years. He was dismissed for gross misconduct, which comprised aggression and intimidatory behaviour, in respect of his colleagues and a supervisor, and an incident involving violence in respect of the supervisor. As he was dismissed for gross misconduct, he received no notice and, therefore, no notice pay.

It is the Complainant’s case that he was unfairly dismissed, that the allegations against him were largely unsubstantiated, that the process was flawed. He is seeking compensation in respect of his economic losses, which, at the date of the hearing, he estimates to be €4,844.80, on foot of the dismissal, as he found work shortly after the dismissal, but at a slightly lower hourly rate. He is further seeking two weeks’ notice pay, in the amount of €1,360.

The events took place in the run up to and over the course of the May bank holiday weekend in 2021.

Both claims are denied by the Respondent. It is the Respondent’s case that the Complainant was dismissed for gross misconduct, inter alia, aggression towards and intimidation of his colleagues and supervisor, including an incident of violence on the job against his supervisor. It is the Respondent’s case that there had been a previous pattern of behavioural issues by the Complainant. The Respondent cited disturbances in two hotels where the Complainant was staying, when away on site for work, one which came to light as part of the investigation triggered by the incident involving the supervisor, CC. It is the Respondent’s case that the dismissal was lawful, that it has a duty of care to all of its employees, that upon investigation, it was discovered that the other employees were ‘in fear’ of the Complainant. The employer submits that none were willing to put their complaints in writing, and none attended at the hearing to give evidence, which the employer cites in support of its case.

Anonymisation of people referred to in evidence but not present at the hearing:

1.       I have anonymised the worker who is a supervisor, and refer to him as CC in this decision, as he was not present to give evidence or be subject to cross-examination, at the hearing.

2.       I have anonymised the worker who is also the home-town friend of the owner/MD of the Respondent business, and refer to him as JM in this decision, as he was not present to give evidence or be subject to cross-examination, at the hearing.

In attendance at the hearing were:

For the Complainant:

Ms. Colleen Minehan, SIPTU

Mr. Adrian Heller, Complainant

For The Respondent:

Ms. Eileen Hayes, Solicitor, Hallissey & Partners, Solicitors

Mr. Anthony Lehane (‘Tony’), Owner and Managing Director, Floortech Industries Ltd.

Mr. Michael O'Donoghue (‘Mike’), Commercial Director, Floortech Industries Ltd.

Mr. MacDarragh Wiseman, Operations Manager, Floortech Industries Ltd.

Mr. Declan O'Sullivan, Contracts Director, Floortech Industries Ltd.

The Complainant made written submissions and gave oral evidence at the hearing.

The Complainant submits, as per his written submissions:

The Complainant commenced employment with the Respondent on May 17th, 2017 as a floor layer. The Complainant submits that the work was very pressurised, often requiring repeated late finishes and early starts and was physically demanding. Much of the work involved overnights around the country. The Complainant submits that he was one of the longer-serving employees.

On Monday 27th, April 2021, the Complainant left the Stores in the Cork offices to go to a job in a hotel in Galway. He was tasked with removing the existing floor and getting down the concrete in preparation for the new flooring.

The Complainant submits that in the week in question, that he worked until 7:00 pm on Monday and Tuesday in order to have the floor almost ready for the installation on Wednesday morning.

The Complainant then moved to another job on Wednesday morning in Limerick requiring two (2) experienced floor layers per section, with a deadline of Friday. He submits that the other experienced floor layer was leaving on Thursday, leaving the Complainant with two inexperienced workers. The Complainant alleges that one of his co-workers threatened to report him to the office, if the work was not complete by Friday.

On Thursday morning, the Complainant noticed some of his coving work and most of his colleagues’ had not “cured” properly, necessitating its removal and the reworking of the areas. The Complainant explained to one of his coworkers that he had been mixing the product incorrectly for laying the coving. The Complainant then went to the other coworker, to seek his assistance, and was also rebuffed. The Complainant submits that he became frustrated and threw his helmet towards the co-worker and walked towards him but then walked away immediately, to avoid a confrontation. The Complainant returned to his work in silence for the rest of the day and he submits that the co-worker was chatting to him before the day finished.

On Saturday May 2nd, 2021, the Complainant submits that he received a phone call from Mr. Declan O'Sullivan saying he had been notified of an incident on the job and suspending the Complainant until he “looked into it.” The Complainant was due to work the following day, Sunday. [For clarity, the upcoming Monday was a public holiday.]

Having received no further contact from the company, the Complainant submits that he attended for work on Tuesday May 4th, 2021, and drove his van to the Stores and packed a bag for the week ahead, as normal. The Complainant submits that he was asked to attend a meeting without notice and was surprised to be confronted by the owner and managing director of the company, Mr. Tony Lehane, and two other managers, Mr. Mike O'Donoghue and Mr. Declan O'Sullivan. The Complainant submits that he was not given the option to be represented at the meeting. The Complainant submits that he endeavoured to explain what happened on site the previous week and ended up crying such was the pressure from the three managers. The Complainant submits that, at this meeting, he was told his “job was gone” by the owner; and that he was then told he was suspended for the rest of the week. He submits that he received a phone call from Mr. Declan O'Sullivan on Wednesday May 5th, 2021 confirming he had been dismissed; and that there was no mention of the right to appeal this decision.

The Complainant returned to the work Stores on May 5th, 2021, to collect his belongings and was not provided with a letter of dismissal.

The Complainant contacted his union who wrote to the company on his behalf on May 18th, 2021.

The Complainant received his letter of dismissal on May 31st, 2021.

The Complainant submits that the company responded to the Complainant’s union, SIPTU, not with the requested copies of investigation and disciplinary processes they had engaged in in respect of the Complainant, but rather “a lengthy character assassination” of the Complainant on June 3rd, 2021.

The Complainant submits that he was summarily dismissed by telephone on May 5th, 2021 following an unscheduled meeting the previous day, on May 4th, 2021, at which he was not notified of the allegations against him in advance, or offered representation, in what turned out to be a three-against-one process.

The Complainant submits that the three managers conducted a fact-finding investigation, reached a conclusion and decided upon a sanction; and that in doing so, they ignored all codes of practice and the most basic right to natural justice in dismissing the Complainant.

The Complainant submits that he was notified of the reasons for his dismissal for the first time on May 31st, 2021, with a letter back-dated to May 5th, 2021, making the option of appeal within seven (7) days a fiction.

The Complainant relies upon the principles set out in Frizzelle V New Ross Credit Union Ltd. [1997] IE HC 137

Specifically,                

1.       The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.       Where the Complainant is a person or a body of immediate 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 noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.       The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

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

The Complainant submits that the principles of natural justice must be unequivocally applied, and that these principles were not applied in this instant.

The Complainant submits that in a complaint of unfair dismissal arising from the employees conduct, the relevant statutory provisions, and the factors to be considered are set out in section 6 of the unfair dismissals act 1977.The circumstances in this case do not amount to the stated “substantial grounds justifying the dismissal”, as per the Act. The Complainant submits that the band of “reasonable responses” test in the context of section 6 of the Unfair Dismissal Act 1977, was set out by Noonan J. in The Governor & Company of the Bank of Ireland V. O'Reilly; and that in cases where misconduct is stated as the basis for dismissal, the test is set by Lord Denning in the British case of British Leyland UK limited V. Swift [1981] IRLR 91, confirmed in this jurisdiction in Foley V. Post Office [2000] ICR 1283.

The Complainant submits that a one-off incident such as throwing a helmet at a colleague could not be considered as an incident of gross misconduct.

In respect of the Unfair Dismissal complaint, the Complainant estimates his economic losses to be €4,844.80, broken down as follows:

Dismissal:

May 5th, 2021 - May 17th, 2021 (when the Complainant took up new employment) = €680 x 2 weeks = €1,360, which equates to two (2) full weeks’ wages

Then, he has calculated the difference between what he earned at the Respondent company and his new rate of pay, covering a 9-month period, to be as follows: Respondent company rate: €17 per hour; Rate from July 1st, 2021: €14.58 per hour to May 2022 x 9 months.

Difference: €2.42 per hour x 40 hours per week x 36 weeks = €3,484.80

Total: €4844.80

Minimum Notice:

In respect of the claim for Minimum Notice, the Complainant submits that the minimum notice in this case is valued at two weeks’ pay, which is the equivalent of €680 x2 = €1,360.

The Complainant gave evidence on oath, on his own behalf, at the hearing.

Summary of the Complainant’s evidence:

The Complainant gave evidence that [Declan O’Sullivan] phoned in the early afternoon and told him that he wasn't going to work on Sunday, that management was aware of an incident that occurred on site on Wednesday. The Complainant said that he was asked to come in on Tuesday to explain. He said that he was not told what the allegations were about or who made them. He said that he was not offered representation.

The Complainant explained that he was expecting that it would be a chat with Mr. Declan O’Sullivan inside the office to tell the Complainant’s side of the story. Upon arrival on Tuesday, he spotted (the owner & MD) Mr. Anthony Lehane’s car, which he noted to be unusual.

The Complainant said that shortly after 8 am, there was a meeting on Tuesday in one of the rooms inside the office, that the meeting consisted of three people from management (including the owner) and him. He said that they started the meeting, that the three of them put a crossfire of questions to him.

The Complainant was asked what they said the allegations were? He said: “That I went physical with CC.” The Complainant said: “I told them my side of it, that the problem was going on for longer than the incident. I explained that I wasn't the only one who had a problem with him.” In response to the question: “Did they list the allegations?” The Complainant said: “No.”

The Complainant said in relation to the incident with raised voices, that Mr. Michael O’Donohue had over-heard. He explained that the workers had split and that he was laying floor on his own.  He said that CC said that “if I didn't finish the job on Friday, he's going to rat me out.” He said that both their voices were raised. He said that he knew Mr. O’Donohue was somewhere on site but had not realised that “he was literally next door.”

He was asked: “The next day, did you throw a helmet?” The Complainant explained that when he came into work, the following morning, the floor had bubbled up because another worker [Not the Complainant and not CC;] had mixed the resin incorrectly. He said that he was really upset, and that the consequence of the other worker’s error was that the floor had to be taken up and re-layed. He said that CC was heading off to the next scheduled job, but that this job still had to be finished by Friday. He alleged that CC called him “a rat.” He said that: “I had a hammer and a chisel.”  He said that he “dropped” the hammer and the chisel to the ground, but that he did not damage either. He said that he “walked towards CC and walked away.” He said that he “walked towards him”, “that's going to go too far”, then went and “had a cigarette.” He said that a couple of hours later, CC started talking to him again.

He said that, at the meeting, on Tuesday morning, there were three managers. He said that he was upset at the end of the conversation because of losing his job, because of all the stress that was caused. He said Mr. Lehane then changed his mind and said he would investigate and they would speak to the Complainant’s colleagues. The Complainant said he was “happy to go home and to leave all that toxic environment.”

The Complainant said that he did not receive any phone call about his dismissal. He said that he understood from Tuesday's meeting that he was dismissed. He said that he rang Mr. Wiseman in relation to his certs (safe pass etc.) and his tools. He said that the tone of the phone call was pleasant.

He was asked whether he was told he would be getting a dismissal letter. He said: “No.” He was asked whether he was told he would have a right of appeal. He said: “No.”

He was asked to clarify that nobody rang him on the Wednesday (the day after the meeting) to say that he was dismissed. He confirmed this.

The Complainant specifically disputed the company's account of the home-town friend of the owner/MD, JM, who was another colleague at work, being afraid of him. He sought to refute this allegation by giving evidence that he was at JM’s house with his daughter, approximately two months subsequent to the dismissal.

The Complainant was asked whether he knew that his colleagues were afraid of him? He said: “No.”

He disputed the company's account that they had a lot of long-term employees - he said they had some, “three had stayed and the rest had left.” He cited “pressure”, as the reason.

On cross examination:

The Complainant was asked about the Tuesday morning meeting and his evidence that he thought the meeting was just with Mr. Declan O’Sullivan. It was put to him that this was not his first disciplinary action, that he had had previous warnings and so he was familiar with the disciplinary practice.

He was asked why if his supervisor CC was putting him under pressure, why he didn't raise a grievance? He said: “I wouldn't put anyone's work at risk.” He said there was pressure, that it was a tough week; and he disputed the record of the hours which the company produced. He said that the hours recorded did not accurately describe the amount of work that was done.

The Respondent disputed that the Complainant was working with two inexperienced workers. It was put to him that one of the workers had twenty years’ experience, and that the second worker had two years’ experience and was at the same level as the Complainant. The Complainant said that the three of them were supposed to stay to finish off the job, and that it was the other general operative’s fault that the work had to be redone.

He was asked if he were very frustrated, and he acknowledged that he was. It was put to him that that was the reason why he threw the objects. He said: “Yes.” He agreed that he threw the helmet after he had exchanged words with his colleague. He said: “It was his fault but I wasn't giving out about it.” He acknowledged that he threw the helmet, but disputed that it had hit anyone, and he acknowledged that he threw the hammer and chisel on the ground. It was put to him that this was because he was not happy with the work, that this was how he reacted. He was asked whether his outburst related to the quality of the work or to the words he had had with CC? He denied the latter. He was asked whether he considered his behavior to be reasonable, and he acknowledged that it was not. He said: “I don’t say it's reasonable.” He said: “I didn't mean to hurt anybody.” It was put to him there had been evidence the workers were in fear, and that his manner was intimidating at the time. The Complainant gave evidence that he did not receive any phone call from Mr. Declan O’Sullivan after the meeting on Tuesday, May 4th 2021. He said that the only phone call he received was on Saturday, May 1st, 2021.

It was put to him that when he came to work to collect his tools (on Wednesday, May 5th, 2021), that he was suspended on pay pending investigation, but that he had never been told that his employment had been terminated. The Complainant denied this. He said that he had become upset and asked the owner & MD, Mr. Lehane to reconsider. He was asked who told him that he was dismissed. He said that Mr. Lehane had. He was asked whether it was his understanding that his employment had been terminated at the meeting on Tuesday and he said: “Yes.” It was put to him that he had said that he was happy to leave because he was leaving a toxic environment, and that therefore he was never going to appeal the decision. He was asked why he didn't appeal when he received the dismissal letter. The Complainant said: “I don't know.”

On redirect:

The Complainant was asked again whether he thought his employment was terminated at the meeting on Tuesday and he said: “I can't remember.” It was put to him that you cannot have your employment terminated and be suspended at the same time.

Mitigation:

The Complainant’s representative submitted that he got employment straight away, two weeks’ post-dismissal, and that he remained working there for three months. He then left that employment of his own accord. He had been earning 17 euros per hour in the Respondent company. He earned 15 euro per hour in the employment he secured immediately post-dismissal. She submitted that he is now earning €14.50 per hour in a permanent job. He identifies his economic loss as being €4,844.80. Additionally, he is seeking two weeks’ minimum notice pay in the amount of €1,360.

Closing remarks by the Complainant’s representative:

In her closing submission on behalf of the Complainant, his representative outlined that the Complainant had four years’ service with the Respondent company, that he had no complaints from clients. She submitted that the process was deeply flawed, that there was a failure to document the allegations or investigations, that the Complainant was not given a right of reply. She submitted that the meeting was a three-versus-one scenario. She said that the dismissal letter was issued on May 24th, 2021, following a query from SIPTU. She said that the loss is minimal but that the Complainant expressed his deep frustration and upset on the day in question, that he had no right of appeal and no right to representation. She submitted that the Complainant absolutely denies threatening his colleagues and that it is his position that those allegations are spurious. She re-iterated that the Complainant said that he had been at JM’s home since, along with his daughter, even though JM was identified specifically as someone who was in fear of the Complainant. She submitted that everything had been done verbally. She said that while the loss is minimal, the experience of dismissal was highly disturbing to the Complainant.

The Respondent submitted written submissions and called four witnesses on its behalf to give evidence at the hearing.

The Respondent submits, as per its written submissions:

Background

The Respondent is the leading manufacturer of resin flooring which is chemical based and reacts with the concrete floor to which it is adhered to form a waterproof surface. It is typically the type of flooring that you would find in hospitals, schools, supermarkets etc. The company is based in Little Island and employs approximately 16 people, the large majority of which are general operatives involved in the laying of the flooring. The Complainant was one such general operative and commenced his employment with the Respondent in May 2017.

During the course of their employment general operatives are on location where the flooring is being laid and depending on the location and size of the job, this may involve staying overnight or numerous nights at various locations. When this arises, the company arranges the accommodation for the operatives.

Unfair Dismissal Claim

Towards the end of April 2021, the company was engaged to supply flooring by a customer based in Galway. The Complainant was one of the operatives engaged to do the work and stayed overnight in a hotel in Galway (arranged by the Respondent company), going away on Tuesday, April 27th, 2021. He travelled to Limerick on Wednesday morning to commence work on a job there.

On Wednesday, April 28th, 2021, during the afternoon, Mike O'Donoghue, the Commercial Director of the Respondent company, overheard raised voices on-site between the Complainant and another operative. They were speaking in Polish, so Mike did not understand what was said. He inquired if there was a problem and was told by both workers that all was okay.

On the evening of the April 30th, 2021, a complaint was received by management from an employee relating to the Complainant's behaviour on the site the previous days. i.e. Wednesday, April 28th to Friday, April 30th, 2021. Mr. Declan O'Sullivan, Contracts Manager with the Respondent company, was told that the Complainant was behaving in an aggressive, bullying, intimidating, and threatening manner towards his work colleagues.

The Respondent company was told that the Complainant had thrown his safety helmet with force at another employee, striking and injuring him on the leg. He was advised that the Complainant was waving a hammer in a threatening manner while shouting at another employee and threatening him with the hammer, before throwing the hammer on the ground with force. He had also thrown a mixing paddle on the ground in an aggressive manner and had threatened employees.

The Respondent was also advised that the Complainant had threatened fellow colleagues, suggesting that, he knew where they lived, and that if they put in a complaint against him to management that he would harm them in some way.

Following on the complaint, Mr. Declan O'Sullivan immediately reported it to Mr. Tony Lehane company owner and Managing Director and to Mr. Mike O’Donohue, Commercial Director. Mr. Lehane immediately commenced an investigation and requested that the Complainant attended the company offices for a meeting. The Complainant was advised that this was a disciplinary meeting pursuant to the company disciplinary policy.

This meeting took place on Tuesday, May 4th, 2021, and in attendance at that meeting were: The Complainant, Mr. Tony Lehane, Company Owner and Managing Director, Mr. Mike O'Donoghue, Commercial Director, and Declan O'Sullivan, Contracts Director. The Complainant was asked for his version of events and advised that the complaint had been received. He was made aware that this was a disciplinary issue.

The Complainant admitted his wrongdoing and admitted that he had thrown the hammer and the mixer and paddle.

It was made clear to the Complainant that the company operates an open-door policy that there were procedures in place to deal with grievances, and that if he had an issue with colleagues he should raise it in the appropriate manner and not by threatening other employees and being aggressive and intimidating. He was told that his behavior was unacceptable and that he had put other employees’ health and safety at risk. It was explained to him that people had to feel safe in their workplace and that this behaviour could not be tolerated. He was asked if he had been aggressive towards his work colleagues on the site. He admitted that he was and said that was how he reacts when he is angry with someone. He admitted that he had thrown the mixer and mixing paddle on the ground during the course of the argument.

He was advised by Tony that this behavior was unacceptable, and that Tony could not have a situation where his employees were being threatened and abused during the course of their employment. He advised the Complainant that he would have no option but to terminate his employment as he had put other people's safety at risk.

The Complainant admitted his wrongdoing and asked Tony to reconsider the decision to terminate his employment. Tony advised him that he would investigate the matter further and suspended him on pay while he was investigating the matter.

Following on from that meeting, further inquiries were made by Declan O'Sullivan and Mike O'Donoghue, and it became clear that the other operatives who worked alongside the Complainant were afraid of him. Employees were fearful for their health and safety, and they described the Complainant as being unpredictable and volatile.

On further investigation it became apparent by the Respondent that the Complainant had:

o   Thrown his helmet at another employee hitting him on the leg.

o   Thrown the mixing paddle on the floor with force.

o   Threatened other employees.

o   Waving a hammer in his hand and shouting at his work colleagues in a threatening and abusive manner.

o   Threw the hammer on the floor with force.

o   Was intimidating in his behavior towards other employees.

The Respondent submits that it was quite clear to the Respondent that other employees were afraid of the Complainant.

The Respondent also became aware of an incident of anti-social behaviour on the part of the Complainant while he was staying in accommodation provided by the Respondent in Galway when he was a guest at a hotel the same week, and caused such a disturbance that he was asked to move to another part of the hotel.

Having concluded the investigation, the Respondent concluded that the Complainant's behaviour amounted to gross misconduct, and he was dismissed without notice pursuant to the company's disciplinary policy.

The Respondent’s position:

The Respondent’s position is that the Complainant’s behaviour was such as to put his work colleagues in fear for their own safety, and same amounted to gross misconduct, and fair procedures were followed and a full investigation was carried out. The Respondent submits that it acted as a reasonable employer would and was justified in the dismissing of the Complainant. The Respondent submits that it has a duty to protect its employees.

The Respondent company's disciplinary procedure was adhered to, which the Complainant was fully aware of, and had been furnished with. The disciplinary procedures provide for immediate dismissal without notice due to gross misconduct and outlines the types of behaviour that is considered gross misconduct. This includes verbal/physical abuse of other employees and bullying/harassing fellow employees which is clearly what had occurred here.

The Respondent company felt they needed to protect their employees from the violent and unpredictable acts of the Complainant. The decision to dismiss the Complainant was not taken lightly but based on the internal investigation. The Respondent company is satisfied that the Complainant’s behaviour meets and exceeds the threshold in respect of gross misconduct and therefore the Complainant’s immediate dismissal from his employment was justified.

The Complainant was advised of his right of appeal and did not take up that appeal.

Applicable law

The Respondent relies on s.6(4)(b) of the Unfair Dismissals Act 1977, i.e. that the dismissal was not unfair as it resulted “wholly or mainly” from “the conduct of the employee.”

The Respondent also relies on s.8 of the Safety Health and Welfare at Work Act 2005, i.e. the statutory duty on an employer to ensure, “so far as is reasonably practicable”, “the safety, health and welfare at work of his/her employees.”

Minimum Notice Claim

It is submitted on behalf of the Respondent that the Complainant is not entitled to notice, having been dismissed for gross misconduct. The Respondent relies on Section 8 of the Minimum Notice and Terms of Employment Act 1973, in that regard.

Conclusion

Due to the seriousness of the Complainant’s behaviour, the Respondent company felt it had no alternative but to terminate the contract of employment with immediate effect. The Respondent took immediate action on the basis of health and safety and for the welfare of its employees. The Respondent company had no option acting as a responsible employer but to terminate the Complainant’s employment without notice, it is submitted on behalf of the Respondent that the dismissal was fair taking account of the totality of the circumstances and accordingly that the Complainant is not entitled to the reliefs claimed.

Summary by Ms. Hayes solicitor – Opening remarks, at the hearing

The company has approximately 16 employees, general operatives operating in the area of resin flooring. The Complainant was dismissed for gross misconduct. There was a complaint made by another employee. The Respondent felt that it had no option but to dismiss. It instituted a disciplinary procedure, there was a real threat and violence, it was concerned as to the safety of its employees, it was not the first incident, and it was found when the Respondent investigated that the other employees were in fear.

Witness No. 1 for the Respondent – Mr. Michael (‘Mike’) O’Donohue, Commercial Director of the Respondent company – gave evidence under oath

Mr. O’Donohue explained that his role was generating business, tendering, supervising. He outlined that he would pop into sites and could have a number of contracts running at the same time.

He said that the company was based in Cork but that it covered the whole country.

He said that he had to attend at sites in order to hold pre-start meetings, when the Respondent company was awarded the contracts. He outlined that accommodation and transport was provided for the general operatives and explained the two or three of them would travel in a van together.

He explained that in April, the week of the 26th, he was in Limerick. He was on site meeting with a client. He walked down the corridor to where “the lads” were working (the Complainant and a colleague CC). Mr. O’Donohue said that he heard ‘raised voices’, that there was an argument going on between the senior general operatives. He said that “[he] heard it before [he] walked down the corridor”, that it “wasn't pleasant”, that there were “raised voices speaking Polish.” He said that he told the two men to “cut it out” and asked “what's going on with ye?” He said that he was told “nothing” and “that was it.” He said he spoke to CC and “gave directions in respect of what was to be done.” He said that on Wednesday, April 28th, 2021. He gave evidence that the Complainant worked on Monday and Tuesday in Galway, and then came to Limerick on Wednesday.

Mr. O’Donohue said that his “next involvement” was on Friday night. He said that he “got a phone call from Declan [O’Sullivan]” telling him that there was “a problem on site in Limerick.” He said that he was told that one of the employees had made an allegation against the Complainant. He said that the Complainant was supposed to work on the Sunday, but that as a result of the problem that had now occurred, he was “going to have to stand him down.” He said that the allegation pertained to a mixing paddle being thrown and a helmet being thrown. He said that the employee who was due to work with the Complainant on Sunday “refused to work with him”, as he was “concerned for his safety” and perceived the Complainant to be “volatile.”

He said that the following Tuesday, May 4th, 2021, [after a Bank Holiday Monday], a disciplinary meeting was convened. In attendance were three members of management (the MD & owner, the Commercial Director and the Contracts Manager) along with the Complainant. Mr. O’Donohue said that the allegation was put to the Complainant, at that meeting, as to whether he had thrown a drill and a mixing paddle. He described the mixing paddle as having a metal shaft with blades at the end of it, that it is used for mixing resin. He said that “if you would feel it, it would cut you.” The Complainant was also asked if he had pushed somebody, and he said that he denied that allegation. Mr. O’Donohue said that there was a “helmet fired at an employee” which “struck him in the leg.” he said that the Complainant admitted to that, at the meeting. He said that the Complainant “admitted that he was arguing continuously with one employee”, that “one employee was telling him what to do and that he didn't like being told what to do”, that he was “stressed”, that he had “a small baby”, that he “had a lot of pressures.”

Mr. O’Donohue said that during the “further investigation”, the “incident with a hammer came up.” He gave evidence that the Complainant had “admitted to the allegations that he had been aggressive.” He said that the owner/MD, Mr. Lehane identified this as “gross misconduct.” He said that the Complainant had received a previous warning involving an incident where, while being put up in a hotel by the Respondent company in Wicklow while travelling for work, the Complainant had been “barred out of the hotel” because he was “aggressive towards somebody” and that he “wasn't welcome back in the hotel” but that the company could continue to use the hotel for its staff. Supporting documentation, dating from May 29th 2019, along with a previous warning issued to the Complainant in respect of that incident (no longer live on his record) were entered in respect of this. He said that Mr. Lehane told the Complainant “I have no option but to let you go.” He said that the Complainant pleaded for “a second chance.” He said on foot of that Mr. Lehane “reconsidered” and “suspended [the Complainant] with pay until the further investigation was carried out.”

He said that the further investigation consisted of a group of five or six employees who are based in Cork city being spoken to as a group. He said that this revealed that they were “all nervous of [the Complainant]”, that they perceived him to be “volatile”, “aggressive”, and that he “won't take instruction.”

He said that the other employees had been with the company much longer than the Complainant, that they had been with the company 24/16/10/12 years. He said the reason that they did not make a complaint was that they were “afraid” of the Complainant. He said they were “all nervous of working with him”, and “also all nervous of staying away in hotels with him.”

He said that there had been an incident the previous week in a hotel in Galway, where the Complainant had been too loud, and had been moved by the hotel as a result.

He said that the issue in Limerick involved the “waving a hammer in his hand”, and that he “fired that down onto the ground.” He said that the Complainant seems to have an issue with two people in particular, including CC who has been with Respondent company for seventeen years and is a supervisor. He said that the Complainant had worked for the company for four years.

He said, of the Complainant, that there was “no issue what the quality of his work”, “he's a good floor layer”, the company is “busy” and “needs floor layers.” He said: “His work was good and we'd put time and effort into training [him]” but that the Respondent company simply could not have the situation which had occurred in the company.

Mr. O’Donohue said that he reported his findings back to the owner/MD [Mr Lehane], and the contracts manager [Mr. O'Sullivan]. He said that he was “shocked”, that he was “surprised no one had complained”, that he “just didn't know what he was going to do”, that he was “very concerned for their safety.” He said that he “asked them if they would come forward” and “they said ‘no.’”

On cross examination:

Mr. O'Donohue was asked as to whether there was a disciplinary policy. He said “yes.” He was asked if it had been given to the Complainant. He said that “it was on his contract of employment.”

It was put to him that there was no letter informing the Complainant that he was to face allegations, that the meeting with the Complainant was set up by phone call on Saturday. Mr. O’Donohue explained that the incident happened on Friday night, that the Complainant was due to work on Saturday, and that it was a long weekend. The meeting was set for Tuesday.

It was put to Mr. O’Donohue that “the standard policy would require the complaint in writing”, that “best practice, fairness and reasonableness, requires you to write to your worker and tell them the allegations and who made them.” He was asked as to whether the policy was forgone and replaced with expediency. He denied this.

It was put to him that the Complainant wasn't offered representation at the meeting. He agreed with that, and then said he did not remember. He was asked whether he thought it was fair that there was a “three against one scenario” at the meeting. He said that he did not make that phone call, that he did not set up the meeting.

It was put to him that the Complainant was “so overwhelmed that he started crying at the meeting.” He agreed that towards the end of the meeting the Complainant broke down. He said: “When he was told that he was being terminated, he did get upset.”

He gave evidence that the Complainant’s first words at the meeting were: “Oh, he has ratted me in” He said one of the three people was there in a note-taking capacity, and that he did not agree that it was a three against one scenario. He said: “[MacDarragh] wrote up the notes.” He was asked whether they were forwarded to the Complainant. They were not.

It was put to the witness that no minutes were forwarded on to the Complainant. The witness said that there was “a previous pattern of behavior here.”

The Complainant’s representative put to the witness that the Complainant had been accused of “gross misconduct” and asked the witness whether or not he had consulted the policy since.

The Complainant’s representative raised the issue of whether or not the Complainant had received a fair process. It was put to the witness that he did not know the policy and that he did not know how it should be executed.

The fact that the Complainant had a small baby was put to the witness. He said that they “didn't get into that.” The witness gave evidence that the Complainant “wasn't rushed”, “he had loads of time”, “roughly 30 minutes.” He said that two people “Mike and Declan” were asking questions. He said that the dismissal letter was signed by the owner/MD, Mr. Lehane. The dismissal letter was entered.

The issue of the dismissal letter was raised with the witness. He said that two employees had made claims. It was put to him that no one was willing to put their claims in writing. He was asked in relation to the further investigation when the Complainant was suspended on pay, whether that was put in writing in relation to the further investigation and put to the Complainant. He said: “No.” It was put to the witness that “it will be our contention that he was dismissed by telephone call. He didn't receive a letter of dismissal until several weeks later.”

Re-examination:

The fact that the Complainant had signed terms and conditions of employment May 17th, 2017 was put to the witness. Those documents were submitted.

The Adjudication Officer, at the hearing, allowed the notes of the meeting to be entered into evidence as ‘notes’ and not as ‘minutes’ as they had not been provided to the Complainant for agreement.

It was clarified that the notes were handwritten by Mr. O'Donoghue, and then typed up by Mr. Wiseman on Tuesday, May 4th, 2021.

It was emphasized that when management spoke to the other operatives, they received the same information/ feedback in terms of being in fear of and subject to volatility, intimidation and aggression by the Complainant.

Witness No. 2 for the Respondent – Mr. Declan O’Sullivan, Contracts Director of the Respondent company, gave evidence under oath.

Mr. Declan O'Sullivan explained that he manages all contracts, allocates the work, assigns the workers to each project. He said that initial complaint was made by CC, when they were tidying up things in the Stores. He said that CC came to him, as he was getting ready for the job, the following day (the Sunday). He said: “I need to talk to you”, “it’s serious” “I need to have a conversation with you about [the Complainant].”

He said that CC told him that the Complainant was engaged in threatening and abusive behavior, that he was in fear, that he didn't feel safe working with him, that the Complainant was very aggressive on site.

He explained about the incident on site on the Wednesday/Thursday job in Limerick. He said that the Complainant had thrown the helmet and it had hit CC on the leg. 

He said that CC did make a complaint, that he came to him [Mr. O’Sullivan], and said “I'll be straight with you. I'm working with him on Sunday. I don't want to work with him. I'm afraid of what will happen on site.”

Mr. O’Sullivan gave evidence that the resin was applied on Friday, and that it has to “cure” which takes 24 hours, so therefore there was no work on the Saturday, so the next working day was the Sunday.

He said that he rang Mr. O’Donohue and told him that CC had come to him, nearly in tears, saying that he wanted to work but that he couldn't because he was in fear.

He said that CC had never been the subject of any disciplinary procedure. He said that Mr. O’Donohue then made him aware of the issue on site on Wednesday which he had witnessed but which he thought was finished. He said they concluded that they had to let Mr. Lehane, the owner/MD of the company know. He said there were phone calls back and forth between the three of them on Saturday morning.

He said that he rang the Complainant and spoke to him and explained the situation to him. He explained the accusation made, that he was being aggressive and threatening on site. He said that the Complainant said: “I understand.”

He said that they held a meeting on Tuesday morning in the office - Tony, Declan and Mike. He said that the seriousness of the meeting was explained to the Complainant and he said that the Complainant arrived on Tuesday morning knowing that it was a disciplinary meeting. He was asked whether the Complainant had requested if he could bring someone to the meeting and he said: ‘No’; He was asked whether he offered the Complainant that he could bring somebody with him to the meeting and he said: ‘No.’

He said at the meeting the Complainant had been working for the company for four years and CC had been working for the company for seventeen years. He said that they needed to hear both sides of the story, which was the policy. He outlined that, at the meeting, they said they wanted to hear from the Complainant; that they explained the allegations about the mixing paddle and the helmet. He said there was another allegation that the Complainant had pushed someone as well, which the Complainant denied. He outlined that the Complainant was asked about the helmet, at the meeting; and that the Complainant admitted that he threw it but claimed that it did not hit anyone. But it was Mr. O’Sullivan’s view that it did hit someone (CC). He believed CC’s complaint rather than the Complainant’s version of events.

He outlined that at the meeting, the Complainant was asked as to whether or not he had engaged in aggressive behavior and he gave evidence that the Complainant confirmed that he had. He said that Mr. Lehane dismissed him for gross misconduct. Mr. O’Sullivan said he was 100% in agreement with Mr. Lehane's decision. He said that Mr. Lehane said to the Complainant, that he had admitted gross misconduct, and that he had no choice but to terminate the Complainant’s employment. The witness said that the Complainant expressed remorse, that he said that he loved his job and asked if there was any way they would reconsider. On foot of that, the Complainant was suspended without pay pending further investigations. The witness said that they were trying to clear the air at the meeting, and that the tone was amicable. He said that when the Complainant broke down “obviously you're not going to be aggressive to a person.”

He said that Mr. Lehane outlined that the Complainant would be suspended on full pay pending an investigation. Mr. O’Sullivan said that he “spoke to the lads”, “two different groups, then we got them all together.” He said allegations were made of aggression on-site, that other workers confirmed that the Complainant had thrown a mixing paddle. The witness outlined that now three/ four people were saying the same thing. He said there had been other incidents, one in the hotel, where the Complainant was moved by the hotel as a result of the commotion that he was making.

He explained that there were two people to a bedroom, when the workers travelled to site to do their work. He said that the workers told him that they would all run in the door to their rooms to avoid having to share with the Complainant. Asked if he was ‘surprised’ by this, he said that he was ‘surprised that someone hadn't mentioned it.’ He said that the workers did not want to be ‘causing trouble, to get a report in, because they were afraid of the repercussions from the Complainant.’ He said there were three different people in particular who said it. The witness said that he asked them, because of the company's investigations, whether anyone would stand up and back these claims up. He said that: ‘No. They all refused on the basis that they were afraid.’ He said that there were ‘threats made, with reference to where they lived.’ He said that the Complainant had told them: ‘If anyone rats me out, I know where you live.’

He said that ‘[his] feeling was that he couldn't have a person like that; he's not suitable for the group.’ He was asked if he believed they were afraid of the Complainant, and he said: ‘Yes.’ He said: “The lads have their own way of sorting things out, but CC was nearly in tears”, “it got to that before he was willing to come forward.” He was asked whether he felt he had a good relationship with all the workers. He confirmed that he did, on-site. The witness said that he reported back his findings having spoken to the workers, that there was then a further meeting on Wednesday morning. He said that Mr. Michael O’Donohue “reported his findings and I confirmed the same thing. They didn't want to work with him.” He was asked whether he felt that [he] “could let the other workers work with [the Complainant]?” He said: “No.” It was put to him in relation to the dismissal, that “the allegation was gross misconduct and there was immediate dismissal” and he was asked whether “any other option considered? “Was there anything else that you could do?” He was asked whether the Complainant could have worked on his own. He said that there was no other option, that there was “no individual work.” He was asked whether he was “satisfied that it wasn't the other workers causing the issues?” He said: “Absolutely.”

He said that “after our meeting on Tuesday, I drove the Complainant home, because he came to work in a [work] van.” He said the Complainant said to him during that journey: “I think I know I'm gone.”He gave evidence that he telephoned the Complainant on Wednesday, May 5th, 2021.

The witness said that he told the Complainant that “we had our investigations” and that the Complainant’s employment was being terminated. He was asked whether he advised the Complainant of his right of appeal. He said: “No.” He said that the Complainant asked if he could come to the Stores to pick up his own tools. The witness said “I met him when he did. I was just leaving when he was coming in. It was very amicable. I said “Sorry, there's nothing we can do.”” The witness was asked whether the Complainant indicated that he was working at that point. He said that the Complainant told him that he would be working within the next couple of days.

On Cross examination

It was put to the witness that the first time the Complainant and his representative were seeing the disciplinary procedure was today at the hearing. That was denied by the witness and he said that the Complainant was furnished with the disciplinary procedure back in 2017. It was put to the witness that at the time of the incident there was no live warning on the Complainant’s record, at the time which he accepted. It was put to him that there were no complaints with the Complainant’s work, no complaints from the clients.

It was put to him that he had not noticed the alleged bad atmosphere and aggressive behavior. It was put to him that none of the workers were in fear because if they had been it is not realistic that six people could not stand up to one person. The witness denied this, explaining that the Complainant would be working with one person one week and another week two people. It was put to him that he didn't witness any of the alleged behaviour. He was asked if there were any copy of the witness statements and he said: “No. It was verbal.”

It was put to him that the Complainant’s right to be represented as set out in S.I. 146/ 2000 was not afforded to him. The Code of Practice was quoted as being the bedrock, that this is the standard that an employer has to hold your disciplinary process to. He was asked whether any advice had been taken before he met with the Complainant. He said that “warning systems have been used previously”, with respect to the Complainant, that this was “gross misconduct.” He said that allegations were made, and that he said: “I trust my guys.” it was put to him that there was no evidence and no witness statements. The witness responded that the Complainant had acted aggressively to two other workers on-site, had been aggressive on-site and a helmet was thrown. It was put to him that “usually an argument takes two people.” The witness said that CC had the helmet thrown at him and that had hit him. He was asked whether CC had an injury and he responded: “No, it's a plastic helmet.” He was asked if the helmet was damaged. He said: “No, it was not damaged.” It was put to him that the Complainant was denying that it had hit CC and that instead it was thrown in CC’s direction. The witness asserted that a complaint had been made, that it was a verbal complaint.

He was whether the Complainant had been put on notice of the allegations against him. The witness said that he believed that he had given the Complainant notice of the meeting. He said: “He knew himself what he had done. So, he knew what the allegation was.” He said he “didn't think there's a requirement for it.” The Complainant’s representative put to him that “there is.” It was put to him that the meeting consisted of three directors versus one worker. He responded by saying “it wasn't a gang up.” He was asked whether any notes of the Complainant’s side of the story were taken? Any reasons? Any mitigation? He said that hand-written notes were taken, which were subsequently typed up. He was asked if any of the three senior managers were in tears during the meeting? He said “No.” He said: “We didn't do anything wrong. So, why would we be crying?’”

Confidentiality

He was asked whether the meeting on the Tuesday morning was confidential to the Complainant. He said he did not think that particular meeting was confidential to the Complainant - he said the matter was discussed amongst the workers, that they knew he was inside in the meeting. It was put to him that there was no confidentiality within the company.

He was asked about the incident on site in Limerick the previous Thursday. He said that a mixing paddle was held in a threatening manner and then thrown on the ground. He said the helmet was thrown at CC. He said that nobody was willing to put it in writing, nobody was willing to put their name to it. It was put to him that he had therefore “bypassed fair procedures.” It was put to him that he didn't give the Complainant the right of reply following the further investigations. He said: “Why would you give him another right of reply again?” It was put to him that it was required, as a matter of procedure. He said: “I didn't realise that was fair procedure. I didn't realise that. I thought once someone admitted they did something, that was it.” He was asked why he didn't allow the Complainant to bring representation? He said: “We didn't stop him. It's in his contract.” [For clarity, it is set out in the grievance procedure at page 3C, not in the disciplinary procedure.]. This witness said that on Saturday morning, the Complainant was told: “If you want to bring someone with you, you can.” He said that nothing was in writing because it is in writing in the grievance procedure. He was asked about his role in the dismissal. He said that: “Once we had our meeting, we agreed that he should be let go.” He was asked whether it was best practice to sack someone over the phone? And it was put to the witness that the Complainant left the meeting crying, which he confirmed. He was asked whether a letter was sent. He said that he did not send a letter. He said that the letter was sent by Mr. MacDarragh Wiseman.

Reexamination

On re-examination, the witness re-iterated that the Complainant had “admitted his wrongdoing.” He emphasised that the reason that the other employees were not willing to put the matter in writing was because “they were in fear.”

Witness No. 3 for the Respondent, Mr. Anthony (‘Tony’) Lehane, Owner and Managing Director of the Respondent company.

Mr. Lehane said that his relationship with the Complainant was cordial, that he would salute him. He was asked whether their paths had crossed previously. He said: “No, not really. One or two things would have come up over the years.” He said that the Complainant “was a good worker, as far as I knew.” He said that there had been “previous disciplinary issues, past behavioral issues” [with the Complainant]. He was asked how he became aware of the complaint that had been made to Mr.  Declan O'Sullivan. He said: “Declan rang me. He gave me the background. CC was fearful; that the Complainant was to be stood down. He went back and forth to Mike O'Donoghue as well.” He said that “it was a bank holiday weekend.” So, they “were to have a meeting on the Tuesday”, that he “wanted to find out what the issues were.”

He said that, at the meeting, initially the Complainant denied the allegations. He said: “it was a fairly cordial meeting” and “at the end, the Complainant admitted that he had been aggressive.” “He admitted to the throwing of the paddle.” “He admitted that he threw the helmet on the ground. He didn't admit to the other allegations.”

The witness said that the problem he has with that is that his crew are working in Hi-Viz and helmets, that other trades are there as well, that his people are highly visible and that it is “a huge issue” for him “what their behavior to people on site is” and that “it’s crucial to the company.”

He said that when the Complainant “admitted the behaviour”, which was “unacceptable”, he “terminated his employment there and then.”

He said he had “spoken to the boys”, that he did “his own little bit of research as well” and he said that “people who were senior on the ground in his company - these people are the same age as myself - there was bullying, and they were afraid of their life.” He said a friend of his (JM) who was from the same hometown and who worked for him for twenty years said that he was afraid because the Complainant said: “I know where you live.” The witness said: “That was enough for me. I didn't need to hear much more after that.”

He said that, at the meeting “the guys were asking questions”, that he was “just listening”, that the Complainant “admitted his wrongdoing.” He said that the Complainant said that he would “change his ways” and asked whether they were willing to give him the benefit of the doubt, which is when he suspended the Complainant without pay. He said that “more information then came to light.”

He talked about the visibility of his employees on sites and at the hotels where the crews stay over, when they are working away on sites around the country. He said: “that's a big issue for me.” He said that his company had “four vans in the car park, shirts with logos, there's been a previous incident in a hotel, we do a lot of work in those industries”, “hotel kitchens is a mainstay of our business” and he said he “couldn’t have that.” He said that he had previously entered into an agreement with the Complainant whereby the Complainant undertook not to drink when he was away (for work), and “that was about the size of it.”

The witness said that he had “been working on building sites for the last forty years, that this represented a major health and safety issue, that everyone in the company was afraid of them, and that his responsibility was one of due care.” He said that he had “no option in order to maintain a safe working environment”, that people “didn't want to work with him”, that “he had isolated himself within the company.”

The Adjudication officer, at the hearing, inquired as to who the decision-maker was and Mr. Lehane confirmed that it was him, stating that it was his company and ultimately it was his decision.

On Cross-examination

It was put to the witness that it was a two-part process, that first of all, one person told the Complainant that he was not to work on Sunday. He was asked whether the Complainant was offered to have a representative present on Tuesday. The witness said that “it was a long weekend” and “there was no time.”

It was put to him that there were three separate investigations. The witness said that he made the decision to sack the Complainant on the day. Then, there was a further investigation during which the Complainant was suspended without pay. He emphasised that it was his company that he is “paying the bills in there” and he said that he had had an agreement with the Complainant where the Complainant agreed that he would not drink during the week.

He was asked in relation to the complaint emanating from the first hotel in Co. Wicklow (dating from 2019) as to whether the Complainant had seen the correspondence with the hotel and he responded to say that: “No, he hadn't.” He emphasised that the Complainant had “admitted himself his wrongdoings.” It was put to him that he didn't give the Complainant a right of reply. The witness said that he had “no regret with what I did and I don't regret it now.” It was put to him that no-one had noticed the Complainant’s behaviour, and he said: “Isn't that the smart way he did it, isn't that great.” It was put to him that nobody came to any of the managers about it (previously) and no-one would put anything in writing. He said that this was due to “bullying and intimidation”, and that “one person can do that.”

It was put to him that the effect of what he did – terminating the Complainant’s employment for gross misconduct - was to cut off someone's income, with no notice, and they were going home to their young family. The witness said that the allegations had been put clearly to the Complainant [at the meeting], that the Complainant had an issue with management, with CC. The witness reiterated the point about the helmet. He said it was malicious damage to company property worth €350. It was put to him that the helmet had not been damaged. He then went on to say that it was about “respect.” He said that the company supplied the employees with “health and safetyequipment.” He said that the Complainant was breaching health and safety guidelines, that “half the company were afraid of their lives.”

He was asked about the dismissal letter. It was put to him that the letter does not say anything about mitigation or any alternatives to dismissal.

Witness No. 4 for the Respondent - McDarragh Wiseman, gave evidence on oath on behalf of the Respondent company.

Mr. Wiseman explained that he is the Operations and Logistics manager in the Respondent company. He explained that his role involves dealing with materials on site, dealing with Enterprise Ireland, dealing with the day-to-day timesheets and the tracking systems on the company’s vans in relation to distance and speed etc.

He gave evidence that in general, the standard workday in the Respondent company is 8 to 5 but that the employees might do an extra hour on a Wednesday or a Thursday and get time and a half and then finish early on a Friday. He disputed the Complainant's claim that he had been working until 7:00 PM on the Monday and Tuesday of the week in question and timesheets were handed in in relation to that, which supported Mr. Wiseman’s evidence. He outlined the contents of the timesheets. He explained what the different columns meant - the first column related to arriving/departing HQ, the second column related to arriving/ departing the second site, the third column related to the finishing time, which indicated either arrival at a hotel (if the employee was away) or at HQ.

He gave evidence that at the meeting on Wednesday, “the lads were reporting their findings.” He gave evidence that Mr. Declan O’Sullivan spoke to the Complainant. He gave evidence that on May 5th 2021, the Complainant sought his safe pass, chemical handling cert. etc. as he said he was going to be looking for work. He said that the Complainant asked: “Is my job definitely gone?” and that the Complainant was told: “Yes. It's gone, but you have the right to appeal.”

The witness then attempted to introduce evidence that was highly prejudicial in nature and not probative of the complaint before the WRC. The Adjudication Officer, at the hearing, directed the Solicitor for the Respondent company to “narrow [her] questions” and directed the witness to “narrow [his] evidence” “to the complaint properly before me here today.”

The witness said he was fully satisfied that he had the correct email address for the Complainant. He gave evidence that he rang the Complainant ten or eleven times over the course of a couple of weeks following his dismissal and “there was no answer and no response.” He gave evidence that he wished to confirm the Complainant’s postal address, that he was aware that the Complainant had moved from Cork city to a county town. He gave evidence that he sent the dismissal letter by registered post, that there was a 5.30pm collection time in Little Island.

It was put to the witness that given his evidence that he was satisfied that they had the right e-mail address for the Complainant, why he did not e-mail the letter on May 5th? He said that “[he] thought the Complainant should get a paper copy of the dismissal letter” and that “[he] was trying to do the right thing.”

The witness also confirmed, on evidence, that the Complainant had not taken up the right of appeal.

On cross-examination:

It was put to the witness that the appeal had expired, that the Complainant did not receive notice of his written right to appeal until May 24th, 2021, even though the letter was dated May 5th, 2021 – it contained a right to appeal the decision within seven days. It was put to him that there had been correspondence from the union to the Respondent company on May 18th, 2021.

The witness said that he was endeavoring to get the letter of dismissal to the Complainant. He said he thought that the company was “very prudent” in how it had approached the matter. It was put to him that the Complainant received no written complaint, no right of reply, no fair procedure, no representation. The witness said that he thought that the Respondent was “a good company.” He explained that the Complainant was not given written notice of what the allegations were as he was due to work on the Sunday, Monday was a bank holiday and the meeting was on Tuesday.

It was put to him that fair procedures would require that the Complainant be put on notice that he could be facing dismissal and why not wait the extra day which would have allowed the Complainant to have been put on written notice of the allegations against him. The witness said that “the onus is on us as a company to protect our employees.” He said that is “the decision we made”, that they were “in fear of their safety” and he further attempted to introduce more prejudicial evidence at this point, which had not been put to the Complainant on cross-examination.

It was put to the witness that May 24th, 2021, and not May 5th, 2021, was the first time that the Complainant was made aware of his right to appeal.

On re-direct

The witness gave evidence that “none of the operatives are here [at the hearing] because they are afraid of [the Complainant] and I can understand why.”

Closing submissions for the Respondent

In her closing submissions Ms. Hayes, Solicitor on behalf of the Respondent said that the Complainant contributed substantially to his own dismissal. She submitted that the employer had acted as a reasonable employer would, that there was a real and present threat to the safety of the other employees. She said she was relying on the case of Looney and Co v Looney UD 843/1984 and that the function of adjudication at the WRC was not to establish guilt or innocence, but to look at what a reasonable employer would do.

She submitted that the company was faced with a situation whereby the other workers were unwilling to work with the Complainant, that “none of the operatives are here today to give evidence, and that it's reasonable to draw inferences from that.” She submitted that the issue here was the Complainant’s behavior, that any employer faced with the same circumstances would have behaved in the same way.

She submitted that the Complainant had “admitted his wrongdoing”, that “he represented a real and present threat to other employees.” She submitted that the company met with the Complainant, and gave him an opportunity to respond, that it then made a decision to terminate the Complainant’s employment for gross misconduct, that perhaps, there could have been more paperwork, but a balance has to be struck between what an employer can do given the timeline in question - the incident was reported on Friday, the Complainant was due to work on the Sunday, the Monday was a Bank Holiday.

She submitted that the key thing for the Adjudication Officer to consider was the reasonableness of the employer's behavior, that it had to ensure a safe place of work for all of its employees. She submitted that the Complainants action must fail, that he had no loss, that he left the employment he held immediately subsequent to being employed by the Respondent of his own accord and now he's at a slightly lower hourly rate in his newest employment.

It falls to me to consider whether the dismissal was both substantively and procedurally fair.

I have directed my mind to the evidence in this case, and considered the submissions and the applicable law, both statute and case law.

I find that the dismissal was substantively fair. I find that the Employer found itself in a situation which was untenable and had to act urgently to address the matter. I accept the evidence of the Employer that complaints were made about the Complainant by other employees, including a supervisor of seventeen years’ standing with an unblemished disciplinary record, and that fears were expressed by the Complainant’s colleagues and the supervisor in relation to his aggressive, intimidating, volatile and violent behaviour at work, both in terms of the workday itself and also in terms of having to travel with the Complainant and share accommodation with the Complainant, connected with their work. I fully accept that dismissing someone in those circumstances falls squarely within the “band of reasonableness” of responses available to an Employer faced with this situation. It is also notable that the Respondent spoke highly of the Complainant’s skills and spoke of the time and effort put into training him.

I further accept the Employer’s evidence with respect to the incident in the hotel, which occurred in the same week, in which the Complainant was being put up by his Employer, and that there was a pattern of pre-existing difficulties with respect to the Complainant’s behaviour (including a prior incident in a hotel from which the Complainant was barred). I note that no live warning was in force on the Complainant’s record, at the time. I also fully accept the evidence on behalf of the Respondent that there is a reputational issue for the company in respect of the conduct of its employees, when coming into contact with members of the public and with other tradespeople, both when out on site working and when staying in hotel accommodation, with the company name and logo highly visible, and that the Respondent company does a great deal of work for the hotel industry.

I also must consider whether the dismissal was procedurally fair. Having considered it carefully, I find that it was not. The Complainant’s representative submitted that the Complainant received “no written complaint, no right of reply, no fair procedure, no representation” and a right of appeal that was “a fiction” as he was only notified of it subsequent to its expiry. While I fully recognise the urgency of the case, due to the nature of the allegations made against the Complainant and the consequent immediate concerns the company had for the safety of its employees, I find that at an absolute minimum, the Complainant should have been notified in writing of the allegations against him and of the fact that he was at risk of dismissal. He should also have been notified of his right to representation in line with S.I. 146/2000. The failure to do so effectively renders the meeting on Tuesday, May 4th, 2021 an ambush. I accept the Complainant’s evidence that he thought he was meeting with one person to explain his side of the story when, in fact, he was walking into a disciplinary meeting, with three managers present, and his employment was in jeopardy. I accept that the Complainant was broadly on notice of the allegations against him – “that I got physical with CC”, and that he had previously been through the disciplinary process. Nevertheless, it is a matter of good practice and fair procedure (in line with S.I. 146/2000) to set out the allegations in writing to an employee facing the potential prospect of dismissal, thus giving the Complainant a meaningful right of reply.

The issue of the appeal is a little more complex. Both representatives submit that the Complainant was dismissed on May 5th, 2021 and that the Complainant had seven days from the date of the decision to appeal. The Respondent’s representative further submitted that the Complainant never had any intention of appealing the decision and was therefore not prejudiced by any delay in the receipt of the hard copy of the letter of dismissal. The Complainant’s representative submitted that the Complainant was only notified of his right to appeal subsequent to its expiry.

It seems to me however that, in reality, what the Respondent actually did was dismiss the Complainant on May 4th, 2021 summarily at the meeting, when the Complainant “admitted his wrongdoing” and then simply affirmed that decision on May 5th, 2021, following an appeal procedure (albeit not a procedurally compliant one) conducted at the Complainant’s behest, the outcome of which was communicated to the Complainant by telephone call. Again, in relation to the fresh allegations which came to light during the additional investigations/‘appeal’, no procedural norms were followed – no written allegations were presented to the Complainant, no meeting was convened to allow him a right of reply and no notification of a right of representation was afforded to him, nor were the potential sanctions outlined. I also find that there was no reality to the putative appeal being offered to the Complainant in his letter of dismissal, even had he received notification of it within the seven days. I find that the Respondent’s final decision was a fait accompli on May 5th, 2021.

In considering this case, I also have had regard to the Complainant’s contribution to his dismissal. I find that the Complainant contributed substantially to his own dismissal. In the totality of the circumstances facing the Employer, I find that the company was a prudent and considered employer in terms of all of its employees, including the Complainant, as well as its legitimate commercial interests, but that it fell down procedurally in its approach to executing what was a dismissal falling entirely within the “band of reasonableness” of responses open to the Employer.  

I determine the Complainant’s contribution to his own dismissal to be no less than 75%.

I also note that the Complainant found work at €15 per hour, within two weeks of his dismissal, which it was submitted on his behalf he then left “of his own accord” after a short period, for work paying €14.50 per hour.

CA-00045027-001: I find that the Complainant was unfairly dismissed. I determine that his contribution to his own dismissal was no less than 75%. The Complainant estimated his economic losses to be: €4,844.80. I therefore direct the Respondent to pay the Complainant €1,211.20 in respect of his unfair dismissal, which takes into account both his mitigation and the Complainant’s own very significant contribution to his own dismissal.

CA-00045027-002: I find that as the Complainant was unfairly dismissed, he is also entitled to statutory notice pay, in the amount of €1,360, which represents two weeks’ wages, and I therefore direct the Respondent to pay the Complainant €1,360.

Unfair Dismissal; Minimum Notice; Gross Misconduct; Assault; Violence; Unfair procedures;