Complainant

Respondent

Anonymised Parties

A Process Operator

A Manufacturing Company

Representatives

David Gaffney, Gaffney Solicitors

James Cleary 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-00043984-001

10/05/2021

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

CA-00043984-002

10/05/2021

The Complainant  was employed by the Respondent from 2 June 2015, as a process operator  until the date of his dismissal for gross misconduct on 27 November 2020. He earned €791 gross; €592.50 net for a 39-hour week. The Complainant submits that he was dismissed contrary to the  Unfair Dismissals Acts, 1977 – 2015 (“the 1977 Act”) in that he did not engage in the gross misconduct as alleged and, furthermore, that  the Respondent’s subsequent investigation was flawed in that it did not investigate the matter fully by declining to interview pertinent witnesses. The Complainant further submits that he did not receive his statutory notice contrary to the  Minimum Notice and Terms of Employment Act 1973 (“the 1973 Act”) .

The Respondent submits that the Complainant  was dismissed from his employment for gross misconduct following a thorough process, undertaken by the Respondent to ensure that maximum fairness and transparency was afforded to the Complainant , in accordance with fair procedures and natural justice. The Respondent further submits that as the Complainant was dismissed due to gross misconduct warranting summary dismissal, he is not entitled to notice, nor payment in lieu of notice.

It was common case that a formal written complaint was made against the Complainant by Ms A about an alleged incidence that occurred on 8 May 2020. A copy of the complaint was exhibited.  Ms A’s  account of the alleged events  can be summarised as follows:

Ms A was walking towards an office in a public area of the plant , accompanied by her colleague Ms. B,  when she heard the Complainant addressing her.  The comments that were shouted at her were  as follows: “can you drive!”,  “can you fucking drive!”. “I’m talking to you. I am asking have you a fucking licence”. The Complainant  continued with this line of comment and stated  her “husband should give you a few slaps every now and again to put you in your  place”. At this stage an unidentified person   who was watching this interaction got up from his seat and shielded Ms A from any further comments from the Complainant. Ms A  went to walk away, and the Complainant  persisted  again with the comment “What I’m asking you; Can you drive”. The Complainant  then stated  that Ms A  was useless, and whoever gave her a licence, because she had  taken up two spaces in the car park. When Ms A challenged the  Complainant , he  got up from his stool where he was working saying  “I’ll sort you out” and proceeded to prod Ms A on the buttock with a sharpened instrument. The Respondent exhibited  photos purporting to show Ms A buttock with indentation marks and bruising.

 It should be noted that the Complainant disputes the veracity of the  account of events as described in Ms A’s  complaint and further questioned  the authenticity  of the exhibited photos.

Mr C, Senior Supervisor and the Respondent’s  disciplinary officer in this matter,  gave evidence   that he believed he had reasonable grounds to sustain serious gross misconduct and did not consider issuing anything less than dismissal given that there was a comprehensive investigation where witnesses were interviewed, and the procedures followed in full. He did not take part in the investigation but instead considered the investigatory report (exhibited). He stated that the Complainant stated at the disciplinary hearing that he was naive and that he believed he engaged only in banter.

In cross examination the witness  stated that statements were taken from seven witnesses  only when the Complainant had in fact named a number of other  people who should have been interviewed. The witness accepted that the investigation went on for three months. The witness denied in cross-examination  that at an initial informal meeting, before the formal investigation and  disciplinary process, he had assured the Complainant that everything would be fine if he should be upfront on his account of  the incident.

Ms D describe herself as working within the HR Department and was part of the appeal team with Mr E. She stated that there was no need for suspension of the Complainant during the investigation and disciplinary process  because it was a large plant and she said that it was foreseen that there would no interaction between the Complainant and Ms A. She believed that the gross misconduct in this instance was so serious as to  merit dismissal. She stated that she felt  having an appeal panel of two independent people was appropriate in this instance. 

Ms F described herself as  an associate employee relations manager and was part of the investigation team. She stated that they  interviewed seven witnesses, plus the Complainant. They could not locate Mr X who it was reputed went to restrain the Complainant during the interaction. Neither Ms A nor the Complainant could identify who this was.

It was put to the witness in cross-examination that other named witnesses were not approached by the Respondent. She said that she believed that all relevant witnesses were approached. The witness accepted that there was no mention of an appeals team in the Respondent’s disciplinary procedures, rather it said an appeal  would be to  one person only.

Mr G described himself as senior quality control manager and formed part of the appeals team with Ms D. He said he approached the appeals process with an open mind, but he believed the outcome was fair on balance.

In cross examination on the point as to why no further witnesses other than the original seven,  he outlined his belief that   those  purported  witnesses named by the Complainant had nothing to add because the Complainant could give no inkling of what they might contribute that was not contributed already. The witness stated that he had taken part in four or five appeals in the past  and considered himself to be  up to the task.

Legal Argument:

CA-00043984-001: Unfair Dismissal.

 The Respondent submits that it cannot accept that the incident as described by Ms A did not happen. It points to the fact that the Complainant referred to his own “naivety” at the disciplinary stage then it was fair to submit that  this was an admission of the interaction with Ms A plus Ms B. The Respondent submits that at  no point did any other witness come forward stating anything other than the fact that this incident occurred. The Respondent stated that the incident cannot reasonably be described as banter when it ended with a physical interaction with Ms A and that ultimately “the crime fits the punishment”.

The Respondent exhibited the Company Disciplinary policy where it described incidences of gross misconduct, amongst others, as

“…violent, abusive or threatening behaviour, or assault towards any other employee;…”

The Complainant cites  A Warehouse Team Leader v A Fresh Foods Business (ADJ-00012944), where a complainant apologised for an assault however the Adjudication Officer outlined that the conduct of the complainant  was inexcusable, even if he felt provoked. The Adjudication Officer acknowledged the severity of the effect of the Claimant ’s dismissal on him, however concluded that having regard to the impact on him, measured against the impact of his conduct on employees and on his employer, the decision to dismiss was reasonable and in proportion to the seriousness of his conduct.

The Respondent contends that the dismissal was in line with fair procedures as laid down by S.I. 146 of 2000.  The Complainant  was informed of the allegations against him and provided with the appropriate documentation and was made aware of the potential consequences of his behaviour. He was afforded the right of representation at all times, was given the opportunity to state his case, and there was a separate investigation, disciplinary, and appeals process carried out.

The Respondent cites  O’Riordan v Great Southern Hotels UD1469/2003, where the EAT set out the test for determining claims relating to gross misconduct:-

 “In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

The Respondent submits that in  assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated:

 “The question is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

CA-00043984-002 Minimum Notice:

The Respondent argues that as the Complainant  was dismissed due to gross misconduct warranting summary dismissal, he is not entitled to notice, nor payment in lieu of notice.  

The Complainant gave evidence that he completely  refuted the account of Ms A and the findings of the Respondent’s investigation. He said he had an interaction with Ms A earlier that day that was a bit of banter and he said the banter continued that day culminating with the purported incident later. He said there was a culture of banter in the workplace, and he said that Ms A regularly partook in the banter. On the evening in question, he said that he may have gestured towards Ms A, but he did not make contact. He had a “Sharpie” felt tipped pen in his hand. He named witnesses whom he said would have seen what had happened but none of them were  interviewed by the Respondent. He did not recall being restrained by anyone at that time.

He described an initial meeting he had with Mr C the senior supervisor and ultimate disciplinary officer in the case. This was before the investigation. Mr C said to him “I want you to put up a bit of a fight”. 

He described the serious impact the dismissal has had on his health, and he was in earnest about this case because the Respondent had destroyed his reputation.  

In cross-examination he refuted the authenticity of the photos of Ms A’s buttock saying he did not know the identity of the person nor did the Respondent. He believed that both Ms A and Ms B fabricated their statements in order to ensnare him.  He said that Mr C intimated to him  that the accusations were false because he assured him  (the Complainant) that everything would be fine. He said that the Respondent did not go far enough to discover the man who allegedly restrained him.

Complainant’s Argument:

The Complainant strongly contends that the decision rendered by the Respondent was not only unjust, but also disproportionate. The Complainant submits it is evident that the Respondent placed an excessive an emphasis on a statement provided by Ms. B, while completely disregarding the testimonies of numerous other individuals. The Complainant maintains that it  is particularly disconcerting that the Respondent failed  to conduct any further investigations into the presence of additional witnesses during the incident. The Complainant emphasises that the Respondent should have actively sought statements from other employees. Moreover, the Complainant  underlines the potential existence of other employees who may have been able to bear witness to the incident.

The Complainant argues that due to the lack of a comprehensive investigation, the entire process was fundamentally flawed. The Complainant contends that when the Respondent  scrutinised the testimonies of what it believed were the relevant witnesses, it became evident that their narratives did not align with the Respondent's intended agenda. According to the statements of Ms A and Ms B, the Complainant  exhibited loud and aggressive behaviour, yet none of the other  witnesses reported hearing anything of the sort nor witnessing any incident between the Complainant and Ms A. Furthermore, no medical report from a doctor was presented to substantiate Ms. A's alleged injuries, and the Gardai were not contacted regarding the purported assault. On the day in question, the Complainant argues,  the atmosphere at the Respondent plant seemed to be filled with typical banter, resembling “ a normal day at the office”.

The Applicable Law:- Unfair Dismissal:

Section 6 of the Unfair Dismissals Act 1977, as amended, (the Act) states, in relevant part, as follows:

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

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

 Employers must act reasonably in taking a decision to dismiss an employee. Section 6(7) of the Acts provides:

“(7) 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 or the Labour Court, as the case may be, 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, …

It is clear in this case that the conduct of the Complainant as described by  Ms A, and reported as  witnessed by Ms B,  was serious and can be reasonably described as gross misconduct, which the Complainant denies. 

 Numerous authorities  have firmly established that the role of the adjudication officer does not involve determining the innocence or guilt of a complainant accused of misconduct. The Respondent opened  O’Riordan v Great Southern Hotels UD1469/2003, where the Employment Appeals Tribunal outlined the following guiding principles which should be adhered to when considering whether or not the Respondent reasonably concluded the Complainant was guilty of an act of gross misconduct:

“In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

 In Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241, the High Court has further echoed this rationale when  Noonan J remarked:

"Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned."

In this case uncontested evidence was given by the Respondent, that eleven separate investigative meetings were held involving various witnesses , including the Complainant and the colleague who made the allegations.  Supporting evidence for Ms A’s account in statements, photographs of injury and an element of contriteness by the Complainant were  matters to be considered by the Respondent , amongst other things. I note that none of the witnesses gave an account in support of  the Complainant’s account of what had  transpired – most  declared an ignorance of events except Ms B, who accompanied Ms A that day.  A comprehensive report was compiled and there were two disciplinary hearings as well as a disciplinary outcome meeting. There was also an appeal hearing. All documentation, exhibited at the hearing  was  provided to the Complainant and he was allowed representation at the meetings. The Complainant  however made an argument that the investigation was neither thorough nor fair because he had named further witnesses who were subsequently not interviewed by the Respondent. However, the Complainant was unable to provide a compelling  explanation for why he believed that interviewing additional witnesses beyond those already interviewed, would significantly enhance the investigation. I believe it is important to note that the number of witnesses interviewed during an investigation is not indicative of its thoroughness or validity and I cannot accept the Complainant’s argument that here was a failure by the Respondent in this aspect which  rendered the investigation to be somewhat tainted by unfairness.

Having considered the evidence in this case, I conclude that a full,  comprehensive and fair investigation was carried out in accordance with the Respondent’s procedures and in line with  S.I. 146 of 2000. In light of this,  I am satisfied that the Respondent reasonably deemed the conduct of the Complainant to be gross misconduct as expressly provided within the definition of gross misconduct in the Respondent’s disciplinary procedure. Following the direction by the High Court in Reilly on consideration of proportionality,  I conclude  that the decision to dismiss  was an  appropriate sanction  within the range of reasonable responses of a reasonable employer given the seriousness of the conduct. I find that the Complainant was not  unfairly dismissed.

CA-00043984-002: Minimum Notice

Section 8 of the 1973 Act states:-

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

Having found that the Complainant was fairly dismissed for gross misconduct, I find that the complaint was not well founded.

CA-00043984-001: Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim. For the reasons outlined above, I find that the Complainant was not unfairly dismissed.

CA-00043984-002: Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation in accordance with the relevant redress provisions under Schedule 6 of that Act. Having found that the Complainant was fairly dismissed for gross misconduct, I find that the Complainant  was not entitled to minimum notice under the Minimum Notice and Terms of Employment Act 1973.

Unfair Dismissal, Gross Misconduct, Minimum Notice.