Complainant

Respondent

Parties

Lucian Mihai Muscalu

Gunn Lennon Fabrication

Complainant

Respondent

Anonymised Parties

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Representatives

 Marius Marosan

Jason Murray BL Reddy Charlton

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-00044869-001

01/07/2021

The Complainant was employed from 2nd September 2019 until 1 July 2021.

The Complainant was employed as a General Operative with the company until his dismissal for gross misconduct on 1st July 2021.

A company barbeque took place on 25th June 2021 and all staff were invited. The Complainant had four whiskeys and three beers. He was telling jokes and said some people are like “snowflakes”, they get offended by anything you do or say. He told a joke saying the most racist animal in the world the Panda Bear who is white, black and Asian all at the same time. Everyone laughed and there was no issue.

On 28th June 2021, the Complainant met the Production Manager C Adams who said the Complainant was animated and everyone enjoyed the barbeque. On 29th June 2021, the Complainant was called into see Mr. Adams and asked is there anything he should know. The Complainant said he was sorry if he offended anyone with his jokes. This was an unexpected meeting and he asked did anyone complain. Mr. Adams made notes.

On 1st July 2021 the Complainant was called into a meeting with Mr. Adams and B Gough Operations Director. He had a contract in his hand and agenda. The Complainant was told his employment had to end as he violated company rules, the Complainant was acting racist with his colleagues. The Complainant said the incident took place outside of work hours and he was intoxicated. He said no one complained. He will contact a lawyer. He collected his belongings from the building and was escorted out.

The Complainant submits the company should have taken into account the fact he was intoxicated at the time, which was outside of work at a company barbeque. The Complainant had a good work record. There was no problem with racist comments when he was in the workplace. He apologised immediately.

The Complainant complains he did not receive notice of the meeting, he was not informed about a complaint against him in advance and did not have an opportunity to reply. The Complainant was not advised to bring a representative. His dismissal was prejudged. The company failed to comply with fair procedures and natural justice, and SI 146 of 2000. The Complainant says his colleague of Jamaican origin was not upset, or offended and fist bumped him at the barbeque.

The Complainant found alternative employment on 10th January 2022.

The Respondent says the Complainant was dismissed for gross misconduct for making wholly unacceptable and racist comments to colleagues.

The company held a staff barbeque during working hours from 12 o’clock. Staff were maintained in work bubbles. The Complainant was in a group of multi-national colleagues including one from Jamaica. The Complainant admits on his complaint form that he made openly racist comments. A colleague present D Phelan said the Complainant made a racist comment along the lines of why are black people’s hands white, because they had them against the wall when they were being painted. Another colleague D Boylan reported the Complainant began to say things which were homophobic talking about rainbow people, he told the Complainant that type of talk was not acceptable.

O Behanie made a formal verbal complaint to Mr. Adams regarding the Complainants comments on 29th June 2021. The Complainant was called to a meeting with Mr. Adams. He said he was sorry if somebody was offended regarding his jokes and it was not intended. Mr. Adams spoke to Mr. Doyle, Mr. Boylan and Mr. Phelan about the incident on 29th and 30th June 2023 to establish the facts. The Complainant was invited to a meeting on 1st July 2021 with Mr. Adams and Mr. Gough Operations Director. He was asked if there were any issues or events that he should make them aware of from the barbeque. The Complainant admitted he said a joke about a panda being racist. He did not direct this to his colleague and did not mean for this to offend anyone.

Mr. Adams and Mr. Gough consulted each other prior to the dismissal, and came to the decision the Complainant should be dismissed as a result of his racist comments. The Complainant was informed he was being dismissed on 1st July 2021 by a letter. He was not informed of a right of appeal.

The company submits that in assessing unfairness the Adjudication Officer must have regard to procedural v substantive justice and relies on Redmond on Dismissal “an employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee”. The Complainant had admitted making racist comments in the workplace and the Adjudication Officer must have regard to all the circumstances.

Without prejudice to the foregoing, the Adjudication Officer must have regard to S7 (2)(b) of the Act, the extent to which financial loss was attributable to an action, omission or conduct of the employee and S7 (2) (c) the measures to mitigate his financial loss and S7 (f) the contribution of the employee to his dismissal. The Respondent submits the Complainant is estopped from being awarded any redress pursuant to the Act and relies on the decisions in Medical & Industrial Pipeline Systems Ltd v David Dunne UDD1945, Smurfit Kappa Ireland Ltd v Nicholas Falon UDD2156 where compensation was reduced by 75% and Sheehan v Continental Administration Co. Ltd UD858/1999.

I heard and considered the submissions of the parties.

A complaint was made on 29th June 2021 by a colleague regarding comments made by the Complainant at a work event. The Complainant attended a meeting with a manager regarding the event. The Complainant was not aware of the complaint against him. Neither the complaint nor witness statements were provided to the Complainant.

The Complainant was not given notice of the meeting, and did not have an opportunity to obtain representation.

The Complainant accepts he made the joke about hands, but his version of the panda joke differs. He says he was intoxicated at the work barbeque but it was not taken into account. He apologised immediately when this was raised and stopped making jokes at the barbeque. There had never been any complaint about his behaviour at work.

Following the meeting on 29th June 2021, the Complainant was dismissed at a meeting on 1st July 2021.

Statutory Instrument no. 146/2000- Industrial Relations Act, 1990 (Code of practice on Grievance and Disciplinary procedures) (Declaration) Order 2000 provides guidelines for handling disciplinary and grievance issues and the principles of this Code of practice should apply to disciplinary measures. This ensures that disciplinary measures are applied in a fair and consistent manner and principles of natural justice and fair procedures are observed.

The principles of natural justice and fair procedures require that details of all allegations are put to the employee, the employee is given the opportunity to respond fully, the right to representation, a fair determination and right of appeal.

Having considered the submissions, I find the dismissal is unfair on procedural grounds. However, the Complainant has undoubtedly significantly contributed to his dismissal with his offensive comments. He has financial loss of €374.40. In all the circumstances, it is just and equitable that I make no award of compensation.

The dismissal is unfair on procedural grounds. No award of compensation is made.

Racism, fair procedures, compensation