Complainant

Respondent

Parties

Anthony  O'Brien

Britvic Ireland Ltd. Britvic Ireland

Representatives

Dave Curran SIPTU

Fergus Dwyer, IBEC

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-00046695-001

14/10/2021

The Complainant commenced employment with the Respondent on 6 April 1999 where he was employed as a General Operative on the factory floor earning a gross annual salary of €39,801. He stated that he was unfairly dismissed by the Respondent following allegations of fighting and inappropriate behaviour having been made against him.

The Complainant stated that he was a SIPTU shop steward in the Respondent’s operation for 20 years and in that capacity represented numerous members in grievances and disciplinary processes. He also represented his colleagues on numerous collective issues, including on the proposed discontinuation of his department just several weeks before the incidents that led to his dismissal and asserted his belief that his dismissal was directly related to his union activities. 

In terms of the events that led to his dismissal, he stated that on 12th May 2021 he was involved in a verbal disagreement on the factory floor with another employee, X. Later that day, in the locker room at approximately 3.45pm, there was another unpleasant verbal exchange between the two individuals. Further to this, at the end of the working day, the Complainant was leaving the Respondent’s premises at around 4pm and as he was walking through the staff car park gate, X exited through the same gate in his car. The Complainant stated that X shouted something to him through the car window which he did not hear and continued to shout something as he passed the Complainant.  The car driven by X then turned left onto the road and pulled up onto the kerb just to the left of the gate. The Complainant stated that he then turned slightly left, ending up several feet away from the driver door, where he could better hear what X was saying while at the same time keeping his distance. He stated that his intention was to find out what X was saying to him, which he planned to report to management, as he believed that what X had said was abusive but he could not hear it clearly through the car window. As the Complainant stopped several feet from the car, in a non-confrontational and non-defensive stance, X opened the car door and quickly approached him. He stated that X then assaulted him, first by “chesting” him, before then grappling with him and finally pushing him down onto the ground and repeatedly punching him. The Complainant states that he did not land a single blow on X nor did he attempt to hurt him in any way. Several minutes later, he reported the incident to management, stating that he had been assaulted by X and suffered injuries as a result.

A few days after, the Respondent issued a letter to the Complainant inviting him to an investigation meeting on 21 May 2021, for “alleged gross misconduct for seriously inappropriate behaviour and fighting” and informed him he was suspended with pay. X was also suspended and invited to an investigation meeting. Two meetings subsequently took place with each of the two men and the CCTV footage capturing the physical altercation was viewed. Although no formal complaint was ever made against the Complainant, he received a letter from Mr George Curley, Head of Manufacturing, inviting him to a disciplinary hearing on 7 July 2021.  The Complainant’s representative highlighted that he did not see copies of X’s witness statements to the Investigator until he received them along with the invite to the disciplinary hearing. He therefore did not get a chance to challenge or rebut this evidence before the investigation had concluded. Two further disciplinary meetings took place on 5 and 13 August 2021. The Complainant stated that he believed Mr Curley was repeatedly taking his words out of context and robustly defended his actions of 12 May 2021, the day of the incident. He also explained that the incident was not a fight between two willing participants, but that X had assaulted him and he had tried to defend himself.

The Complainant was issued with a letter of dismissal by his employer on the grounds of gross misconduct at an outcome meeting on 25 August 2021. He appealed the decision, and a hearing was held on 23 September 2021. The appeal was not upheld.

On 12 May 2021, the Complainant was involved in an altercation at the entrance to the factory and was advised in writing that he was being suspended on full pay for alleged gross misconduct, namely alleged inappropriate behaviour and fighting. He was further advised that his actions were the subject of a disciplinary investigation being conducted in accordance with the Respondent’s Disciplinary Policy.

On 18 May 2021, the Complainant was invited to attend an investigation meeting scheduled for 21 May 2021 at which he was accompanied by his trade union representative. On 22 May 2021, the Complainant was invited to attend a follow up investigation meeting on 24 June 2021. The preliminary investigation was concluded on 25 June 2021 and it was recommended in an investigation report dated 28 June 2021 that the matters alleged against the Complainant be examined at a formal disciplinary hearing.

On 30 June 2021, the Complainant was invited to attend a formal disciplinary meeting with Mr. George Curley. He was provided with all relevant documentation, including an investigation summary as well as the witness statements of those who were interviewed by the Investigator over the course of the investigation. In addition, the Complainant was advised that, if the allegations against him were proven, a sanction up to and including dismissal could be imposed. The meeting went ahead as scheduled on 7 July 2021 and the Complainant was accompanied by his trade union representative.

On 29 July 2021, the Complainant was invited to attend a further disciplinary meeting scheduled to take place on 5 August 2021. A video of the altercation between him and X was played and the Complainant was afforded an opportunity to explain his actions. As there were still outstanding matters the meeting was adjourned and it was agreed by both sides to re-convene on 13 August 2021 at which the Complainant again availed of his right to be accompanied.

On 23 August 2021, the Complainant was invited to attend an outcome meeting scheduled to take place on 25 August 2021 at which he was informed that Mr. Curley had decided to impose a sanction of summary dismissal. The Complainant was subsequently provided with details of the decision in writing along with the rationale for the decision and was also advised of his right to appeal.

On 27 August 2021, the Complainant appealed the decision to summarily dismiss him and was notified on 9 September 2021 that his appeal meeting would take place on 23 September 2021 with Damien Shelley. On 13 October 2021, the Complainant attended the appeal outcome meeting where he was accompanied by his trade union representative. Mr. Shelley informed the Complainant that the decision to dismiss him summarily was being upheld.

The Law 

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes 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) of the Unfair Dismissals Act, 1977 provides as follows:

4)     Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)   the capability, competence or qualification 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 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.

Section 6(6) of the Act states as follows:

“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 of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal”.

Section 6(7) of the Act states as follows:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer, considers it appropriate to do so—

(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 by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

Analysis and Findings

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair. 

Substantive Fairness

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be considered. Specifically, in this case, I must establish in the first instance whether it was reasonable of the Respondent to dismiss the Complainant on the grounds that on 12 May 2021 he breached their Code of Conduct as well as their Dignity at Work policy through his alleged inappropriate behaviour in relation to X and his fighting.

In examining the Complainant’s alleged “seriouslyinappropriate behaviour”, I note that it was accepted by him that he used “industrial language” when he engaged in several verbal altercations with X both on the Respondent’s factory floor and in the locker room on 12 May 2021 but I also noted that X did likewise. As he subsequently left the work premises on the day, the Complainant stated that he believed Mr X attempted to engage him in a further verbal altercation from his car. Specifically, the Complainant stated in his evidence to the Investigator that X “was saying something out of the window of his car as he drove out”. The Complainant later clarified this at the disciplinary hearing, further to a question by Mr Curley, stating he “could not make out what he [X] was saying, so [I] turned towards the car to hear what he was saying”. I also noted that X failed to explain to the Investigator why he got out of the car and, crucially in my view, the Investigator never asked him (X) why he did so. While I also note that Mr Curley stated at the disciplinary meeting on 13 August 2021 that X denied shouting at the Complainant as he was coming out of the gate, I am satisfied, having reviewed on several occasions the minutes of the meetings of 20 and 25 May 2021 with the Investigator, that X never made this denial. In addition, in my view, there was no evidence whatsoever presented during the investigation to suggest that the Complainant encouraged or asked X to get out of the car. While I recognise that, in his witness statement, X stated if the Complainant had not approached the car, “none of this would have happened”, incredibly he was not asked by the Investigator to clarify what he meant by this and in the absence of any clarification I am at a loss to know what X meant.

I therefore find, in the absence of any evidence to the contrary from X, that X was shouting at the Complainant from his car, that the Complainant then approached the car because he could not hear what X was saying and he wanted to do so to make a complaint to management. I also find, given the unchallenged evidence of the Complainant, that X got out of the car of his own volition. Considering the foregoing and given that there was no evidence presented by X to the Investigator to suggest that the Complainant had said anything to him either before he started or when he was approaching the car, it is incomprehensible that the Disciplinary Officer concluded in his outcome letter that he did not “accept that [the Complainant] went towards the car for any other reason than to confront [X] with the full sense of reality for the situation and what this might lead to”.

After X decided to get out of the car, I noted the contradictory evidence presented both by him and the Complainant to the Investigator about who first pushed who in the chest after X walked towards the Complainant and find that, having reviewed the CCTV, it is not clear who did so. I therefore believe that it was unreasonable for Mr Curley to prefer the evidence of X that the Complainant had pushed him because of his view that the CCTV showed X “falling back from the physical contact” with the Complainant, especially as the Complainant explained that X may have fallen back from the force of having pushed against him (the Complainant) in the first instance and my view that the CCTV evidence, upon which Mr Curley relied, was inconclusive in this respect.

In examining the Complainant’s alleged role in the “fighting”, I note that X appears to accept in his statement to the Investigator on 25 June 2021 that after the pushing incident, he then approached the Complainant again and the fight ensued. As the Investigator asked X no further questions after this regarding the fight, I must accept the Complainant’s unchallenged evidence regarding what happened and find that after the pushing, X started the fight.  I also noted that although it is stated in the disciplinary outcome letter that the Complainant and X had to be “forcibly separated”, the evidence in this regard was contradictory. Specifically, the Complainant denied in his evidence to the Investigator that both he and X had to be separated during their fight while X told the Investigator that they were pulled apart by two people. Despite this clear conflict of evidence, the Investigator made no reference to the CCTV evidence in his meeting with the Complainant and inexplicably did not ask one of the two people, Y, who had allegedly separated the two men, any questions about the alleged separation when he met with him on 26 May 2021. I also noted that the Complainant’s union representative asked during the disciplinary hearing that Y be spoken to again, given the lack of clarity in his evidence to the Investigator but that Mr Curley refused to do so. Given the contradictory and unsupported evidence gathered during the investigation around whether the Complainant and X had to be separated at all, Mr Curley should not have concluded in his outcome letter that they had to be “forcibly separated”. While I noted that he said in his evidence at the WRC hearing, he came to this conclusion because of the CCTV footage, it was wholly unreasonable that he did so because this evidence had not been presented to the Complainant at the investigation stage and the Investigator asked no questions around the alleged separation.

I also note that there was no evidence presented to the Investigator that the Complainant threw a punch at X after the fight started although I do accept that he did grapple with him and did not run away when X engaged him in a fight. I find therefore that the Complainant’s reactions in the instant case are like those of the Complainant in A Climber Vs A Tree Management Company ADJ-00019437. In finding that he was unfairly dismissed, the Adjudication Officer in that matter stated that “In the first few seconds of an assault, I think it is too much to expect, and it requires a degree of passivity not generally available in the heat of the moment, to find a place to run” and further that “It seems to me that, when he was attacked by CO, the complainant could have run away, but this would have required a level of coolness and rationality not available to someone on the receiving end of a punch”.

In considering whether the Complainant’s behaviours on 12 May 2021 constituted bullying of X, as Mr Curley found they did, I note that in accordance with the Respondent’s Dignity and Respect at Work policy there is both an informal as well as a formal procedure surrounding bullying/harassment at work and that although X never made a complaint of bullying or harassment either informally or formally, under the grievance procedure, as he was required to do in accordance the policy, Mr Curley found that the Complainant breached the Dignity and Respect at Work policy. To be clear, it should be impossible for the Respondent to have made a finding of bullying against an employee, in accordance with their own policy, if a formal complaint had not been made by the employee who was bullied.

Similarly, there was no complaint, formal or otherwise, made by X that the Complainant breached the Respondent’s Code of Conduct even though that policy also includes a provision for complaints to be made where there is an allegation of such a breach. In circumstances where there was no complaint made that the Complainant breached the Code of Conduct, there should also have been no finding made that he did so. Moreover, I noted that it was not explained in the disciplinary outcome letter how the Complainant had breached the Code. Specifically, the outcome letter stated that, under the Code of Conduct, the Respondent does not “tolerate any behaviour or attitudes that discriminate against anyone or coerce, intimidate, bully or harass others or threaten them with verbal or physical violence”. As there was no suggestion whatsoever that the Complainant had ever discriminated against anyone however and no complaint of bullying had ever been made against him, in accordance with the Dignity and Respect at Work policy, as I have outlined above, I am at a loss to understand how he was deemed to have breached the Code of Conduct.  

As highlighted above, the appropriate test is to determine whether any reasonable employer would have dismissed the Complainant based on the evidence gathered during the investigation and the responses to questions around that that evidence given at the disciplinary hearing. In all of the circumstances and for the reasons I have outlined above, I find that no reasonable employer would have done so and consequently I find that his dismissal was both unreasonable as well as substantively unfair.

Procedural Fairness

As well as making a finding on both the reasonableness and substantive unfairness of the dismissal, I must also examine if it was procedurally fair prior to deciding on the remedy.

In this regard, I noted firstly that while the letter of suspension as well as the invitation to both the investigation and the disciplinary hearing refer to allegations of “seriously inappropriate behaviour” as well as “fighting”, there is no reference to what the alleged inappropriate behaviour was or who the Complainant had allegedly been fighting with. In the absence of same, the Complainant was totally unaware of the precise nature of the allegations that he was facing prior to both the investigation and the disciplinary hearing, despite his union representative having highlighted this on numerous occasions during the process.

In addition, I noted, as highlighted above, that it was found in the disciplinary outcome letter that the Complainant had breached both the Respondent’s Dignity at Work Policy as well as the Code of Conduct despite there being no reference to same in either the letter he received when he was suspended or in the invite to the investigation. Indeed, it was only when he received the invite to the disciplinary hearing on 30 June 2021 that he was made aware he had allegedly breached the Code of Conduct and our Dignity and Respect at Work Policy but even still there was no specific details given around how he had allegedly done so. Specifically, the letter stated: “The reason for the meeting is to review your alleged gross misconduct for seriously inappropriate misbehaviour and furthermore your alleged behaviour is in breach of our Code of Conduct and our Dignity and Respect at Work Policy, specifically we will create a work environment free from disrespectful behaviour”. I find the inclusion of two additional allegations in the disciplinary invite letter to be very concerning from a procedural fairness point of view and indicative of a significant degree of prejudice, given that neither of the above two policies had been referred to in any of the earlier correspondence nor were there any questions around a breach of these policies posed by the Investigator during his meetings with the Complainant.

As well as being at odds with both the principles of fair procedures and natural justice, the failure to specify the precise nature of the allegations made against the Complainant or what policies he breached is contrary to the provisions of the Respondent’s own disciplinary procedure which state that “Britvic will give in writing the reasons why the employee is being called to a disciplinary hearing”.

I also find that the Respondent compounded the procedural unfairness shown to the Complainant throughout the process by refusing to show him the crucial statements made by X during the investigation. This would have allowed the Complainant to respond to or challenge what X said, prior to the Investigator establishing whether there was a case to answer at a disciplinary hearing and would have prevented Mr Curley from making decisions on evidence that was not tested. Indeed, it was not until he received the invite to attend the disciplinary hearing that the Complainant got to see for the very first time the witness statements that X had made during the investigation. The inexplicable failure to allow him to respond to these during the investigation is at odds with both fair procedures as well as the principles of natural justice and is another example of the procedural unfairness of the dismissal.

Having reviewed the minutes of the disciplinary hearing, which took place over three meetings on 7 July 2021 as well as the 5 and 13 August 2021, I also find that Mr Curley was trying to establish what happened on 12 May 2021 even though his role as the Disciplinary Officer was to decide on a sanction and not to re-investigate the matter. Specifically, when it was put to him by the Complainant’s representative, at the meeting on 5 August 2021 that he still appeared to be investigating the matter and that there should be a clear distinction between the investigation and the disciplinary phases, Mr Curley replied to him that “it is common practice to switch between investigation and disciplinary” and further stated “ if we feel we need clarification on something we will go back and investigate”. In addition, Mr Curley stated in evidence at the WRC hearing on 9 August 2022 that he could investigate other matters that arose during the disciplinary meetings that had not arisen beforehand. I also noted that the disciplinary hearing took place over three separate meetings and find, having reviewed the minutes of all three, that it was so protracted because Mr Curley inexplicably appeared to be re-investigating the matter given that he was seeking to gather facts that had not been sought by the Investigator. This is at odds with the purpose of a disciplinary hearing however where an employee should be simply allowed the opportunity to state their case, respond to both the allegations made against them and the evidence gathered during the investigation before a decision is taken on whether disciplinary action is warranted.

My view that Mr Curley re-investigated the matter himself is supported by his disciplinary outcome letter where he made findings against the Complainant without having regard to the evidence gathered during the investigation. Specifically, in the outcome letter he disputed the Complainant’s evidence, given at the disciplinary hearing, that X fell backwards from the force of him (X) having pushed against the Complainant and asserted instead that having reviewed the CCTV he (Mr Curley) was of the view that X fell back from having been pushed by the Complainant. Incredibly, I note that this assertion was not put to the Complainant during the investigation process and Mr Curley stated in the outcome letter that he relied on the CCTV footage to support his view that X had fallen back after the contact was made. As the Complainant was not given the opportunity during the investigation to reply to this CCTV evidence presented by Mr Curley at the disciplinary hearing however and he was not shown X’s witness statements by the Investigator to dispute the fact that X had fallen back, which X stated he did in his own evidence to the Investigator, the finding by Mr Curley that X fell back after having made physical contact with the Complainant was procedurally unfair as well as unreasonable, which I have highlighted above.

Considering the foregoing, I find that the dismissal was procedurally unfair. As I have outlined above, I have also found that the dismissal was also substantively unfair and therefore find that the Complainant was unfairly dismissed.

While I find that the Complainant was unfairly dismissed, it should be highlighted however that there was no compelling evidence to suggest that the dismissal had anything whatsoever to do with the Complainant’s union activities and in addition I note that X, who was engaged in the assault with the Complainant, was also dismissed.

THE LAW

Section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, 

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee, 

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, 

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, 

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

Having decided that the Complainant was unfairly dismissed, I must now examine the appropriate form of redress in accordance with section 7 (1) of the Act set out above. I note the Complainant’s preference for compensation as a remedy and find that this is appropriate in this instance given that she has found alternative employment elsewhere.

Having found that the Complainant was unfairly dismissed, I must now consider the remedy and note that the Complainant is seeking re-instatement or failing that re-engagement.

While I recognise that, when canvassed on the question, the Respondent objected very strongly to the prospect of the Complainant returning to his employment because of the breakdown in trust caused by his misconduct, I do not accept that a reasonable employer would lose faith in an employee with 24 years’ service because he was verbally abusive to a colleague on one given day, especially in circumstances where no training had been provided to employees around the provisions of the Dignity at Work policy, and engaged in a physical altercation that was not started by him where there was no evidence whatsoever presented to suggest that he threw a punch.

Had the Complainant been dismissed on the grounds that he had engaged in gross misconduct that was “criminal or quasi-criminal in nature” (Desmond Brennan -v- Institute of Technology Carlow UD281/2000) such as assault, fraud or theft, it would be understandable that the bond of trust between the parties, necessary for the resumption of the employment relationship, would be broken. In this case however I have found that the Complainant did not start the fight and as the verbal abuse of his colleague, unacceptable as it was, occurred only over one afternoon, there is little basis for the Respondent’s view that he would repeat this behaviour in the future, especially given that he had a clean record for 24 years. It is important to highlight that I would have more sympathy for the Respondent’s position in this regard if, prior to his dismissal, he had been given formal warnings following an instance of verbal abuse, in line with their disciplinary procedure, and continued this behaviour after having received the appropriate warnings.

In addition, I consider it significant that the Respondent has a sizeable factory where approximately 110 employees work and it would, in my view, be relatively easy for the Complainant to resume his role with little fuss or difficulty for the operation. Perhaps more importantly, I cannot ignore that the Complainant is now 61 years of age and I accept his evidence that it is much more difficult to secure suitable work in a similar position to that in which he worked for the Respondent at his stage in life than it would be for a much younger man.   

Considering the foregoing, I find that the Complainant should be allowed to resume his employment and have therefore disregarded the evidence presented to me by the representatives in relation to the remedy of compensation.

While I have given serious consideration to re-instatement, given both the wholly unreasonable decision to dismiss him as well as the significant procedural flaws in the process, I noted that the Complainant in his own evidence stated that his conduct on 12 May 2021 warranted a final written warning or at worst a period of suspension without pay. Moreover, given that it is now almost 21 months since the dismissal and that the Complainant has earned some money over this period, I find that such a remedy would be inappropriate in this instance.

I decide therefore that the Complainant should be re-engaged in his previous role from the date of this decision with the period from the date of his unfair dismissal to the date of his re-engagement to be regarded as a period of unpaid suspension.