Complainant

Respondent

Parties

Mariusz  Skalski

Mulleadys Limited

Representatives

Ms. Malgorzata Manska

Mr. Barry Walsh, Fieldfisher

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-00042091-001

21/01/2021

The Complainant commenced employment with the Respondent on 13th September 2016. The Complainant was a permanent, full-time employee, earning an average weekly wage of €440.00. The Complainant’s employment was terminated by the Respondent on 5th November 2020.

On 21st January 2021, the Complainant referred the present complaint to the Commission. Herein, he alleged that the disciplinary process imposed upon him was procedurally flawed and that the sanction of dismissal was disproportionate in the circumstances. In answerer the claim, the Respondent submitted that the Complainant’s contractual and natural rights were respected throughout the process and the admitted actions of the Complainant constituted gross misconduct.

A hearing in relation to this a matter was convened for, and finalised on, 27th June 2022. In advance of the hearing both parties issued lengthy submissions. The Respondent called three witnesses to give evidence, the person that conducted the investigation process, the person that conducted the initial disciplinary process and the person that conducted the appeal process. The Complainant called three witnesses in support of this complaint, himself, his partner and one of his former colleagues.

In circumstances whereby dismissal was accepted as a fact, the Respondent accepted the consequent burden of proof and presented their case first.  No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. 

The Respondent is a waste collection service based in County Longford. The Complainant commenced employment with the Respondent on 29th August 2016 in the position of general operative. The Complainant’s employment was uneventful until September 2020.

On 5th September 2020, the Complainant was informed that as he had travelled outside of the jurisdiction, he would be required to self-isolate for a period of 14 days, in accordance with government advice. The Complainant was given a prospective return date of 21st September 2020.

Notwithstanding the foregoing, on 9th September 2020, the Complainant attended the Respondent’s premises and became involved in an incident with two other employees. During this incident, the Complainant behaved in a threatening manner toward two members of staff and attempted to have a physical altercation with a third. The Complainant was sent home by management and placed on paid suspension thereafter.

On 9th September 2020, the Complainant was informed of three allegations against him. Firstly, it was alleged that he attended the Respondent’s premises during a period of self-isolation, secondly he attempted to have a physical altercation with a member of staff and finally that he behaved in an aggressive and threatening manner toward two members of staff. The Complainant attended an investigation meeting in respect of the above-mentioned matters on 21st September 2020. In the course of this meeting, the Complainant accepted many of the allegation above. Nonetheless, he submitted that on the date in question that one of his colleagues was causing his partner, who also worked for the Respondent, a significant amount of upset. The purpose of his attendance on the date in question was to confront this individual in order to prevent the issues from re-occurring. Following this meeting, an investigation report was complied whereby it was recommended that the matter proceed to disciplinary hearing.

The initial disciplinary hearing was scheduled for 28th October 2020, with an outcome duly issuing on 5th November 2020. Herein, the Complainant was informed that this actions on 5th September 2020 constituted gross misconduct and, as a consequence of the same, his employment was terminated. The Complainant elected to appeal this outcome. Following a hearing in relation to the matter, the outcome was upheld by way of correspondence dated 3rd December 2020.

By submission, the Respondent stated that the Complainant’s actions, which were admitted at all times, constituted gross misconduct. They stated that they had a duty to protect their other employees and to provide a safe place of work. Regarding the defence offered by the Complainant, they stated that it was immaterial that he was allegedly provoked into attending the premises on the date in question, he still elected to breach Covid-19 guidelines and attend the workplace for the purposes of confronting a colleague during working hours. The Respondent further submitted that the process adopted was procedurally fair.

While the Complainant agreed with the Respondent regarding much of the factual matrix of the matter, he submitted that the investigation was incomplete and the outcome was disproportionate. In particular, the Complainant stated that a particular witness was not called to give a statement in respect of the incident. He further submitted that the altercation was recorded by at least two members of staff on their phones. The Complainant submitted that had the matter been properly investigated, it would have demonstrated that it was his former colleague that escalated the matter from a verbal to a physical altercation.

In addition to the foregoing, the Complainant submitted that whilst he accepted that he committed some wrong doing on the date in question, he was provoked into the same by the actions of one of his former colleagues. He submitted that this person had been making disparaging remarks about his wife to other members of staff. Complaints had been made about this person previously and the Respondent had done nothing to rectify the situation. In these circumstances, the Complainant was forced to take matters into his own hands. The Complainant submitted that the fact of this provocation, coupled with his long service and unblemished work record rendered the sanction of dismissal disproportionate.

Finally, the Complainant submitted that in earlier in his employment, he witnessed another member of staff being involved in an altercation. The Complainant observed that this person was not dismissed at this time and questioned as to why he was dismissed for similar misconduct.

Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) provides that,

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

a)   to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

b)     to the extent (if any) of the compliance or failure to comply…with the procedure…or with the provisions of any code of practice…”

The matter of Noritake (Irl) Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

The present case is somewhat unusual in that much of the factual matrix in agreed between the parties. It is agreed that the Complainant attended the workplace 9th September 2020 during a period of self-isolation. Once at the site the Complainant commenced a verbal altercation with a member of staff present and engaged in intimidation behaviour towards this person. Thereafter the Complainant left the premises and the disciplinary process commenced, ultimately ending the Complainant’s dismissal.

Having regard to the foregoing, the Complainant has accepted that his actions on the date in question constituted a form of misconduct, however he submitted that the mitigating factors present; his long service, clean record and the provocation suffered, rendered the sanction of dismissal disproportionate. He submitted that had the matter been properly investigated, to include videos taken by colleagues and all witness statements, this latter point would have been demonstrated.

Regarding the investigation of the matter, it is apparent that the Complainant, from the outset, conceded that he committed the wrong-doing alleged. This being the case, the points raised by the Complainant in respect of this investigatory process are rendered somewhat obsolete. The purpose of the investigatory process is to determine the factual element of what occurred and the Complainant’s rationale for the same. Ultimately, the Complainant was dismissed for attending the premises, when specifically instructed not to do so for any reason, for the purposes of confronting an employee during their working hours. The Complainant, at all times, admitted to this misconduct and no material dispute to the relevant facts leading to the dismissal existed at any point of the process.

Regarding the sanction itself, following the disciplinary process, the Respondent found that the Complainant had committed gross misconduct and, in accordance with their internal procedures, he was dismissed. In the matter of Desmond Brennan -v- Institute of Technology Carlow UD281/2000, the Employment Appeals Tribunal held that,

“…“gross misconduct” must be something very serious indeed, perhaps criminal or quasi-criminal in nature.” 

Having reviewed the relevant evidence, it is apparent that the Complainant’s actions on the morning in question constituted gross misconduct. Firstly, the Complainant, whilst engaged in a period of compulsory self-isolation, attended the Complainant’s premises and potentially exposed their staff and customers to the virus. The stated purpose of this visit was to confront an employee that was at work during their normal working hours. Thereafter the Complainant engaged in a verbal and physical altercation with that employee, in full view of several onlookers. Whilst the Complainant may alleged that he was provoked, and irrespective of how noble he believed his cause to be, such behaviour cannot be tolerated in any work environment.

The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

In matter such as these the correct test is to determine whether any reasonable employer would have dismissed the Complainant. Having regard to the same, it is important that the decision maker does not substitute their view for that of the Respondent. However having reviewed the totality of the evidence presented I find that any reasonable employer would have dismissed the Complainant in the circumstances. As a consequence of the same, I find that the dismissal of the Complainant was not unfair.

I find that the Complainant was not unfairly dismissed.

Covid-19, Attendance, Self-Isolation