Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Elaine Mailey

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Act 1969 (as amended)

CA-00057074

8th of June 2023

The Worker was employed as a forklift driver in the Employer’s Depot.

He was dismissed on the 18th of April 2023 following a physical altercation with another worker in the yard.

The Worker provided an overview of the background to this dispute.

He had been subject to repeated bullying and harassment from two other workers for nearly 6 months. This verbal abuse was quite extreme and at times even involved him being called a faggot and a paedophile and threats being made to damage his car.

He tried to raise the issue with his supervisor but it was not dealt with. The two workers at the heart of the abuse were extremely disruptive and often had to be separated as they would stop others from working.

 On the 6th of April the Worker was trying to work and the abuse resumed. On this occasion the perpetrator (X) referred to his mother, who was recently deceased.

He approached this individual but was held back by his colleagues. While he and X were being held apart X kicked him in the chest. They then fought on the ground for a few moments before being split up.

The Worker was told both he and x were suspended however x was allowed to return to work almost immediately. The Worker was dismissed.

On the 6th of April HR were notified of a physical altercation.

An investigation began that day and witness statements were taken and cctv was reviewed. The evidence pointed to the Worker approaching X to engage in a physical fight.

X was returned to work with a warning.

Having reviewed the evidence gathered in the investigation the Employer decided that dismissal was warranted.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I note that the Worker had a number of serious grievances not investigated or dealt with by the Employer even though he had raised them via his supervisor. As these issues were never investigated by the Employer and the Workers recollection went unchallenged in the hearing, I accept that they occurred and have drafted this recommendation on that basis.

While the Worker ought not to have approached X on the day in question and bears primary responsibility for doing so, the Employer also bears some responsibility for allowing quite extreme and cruel bullying to go unchallenged.  

It is not clear whether they took this into account when considering whether to dismiss the Worker. Indeed it is not clear whether they held a disciplinary hearing to review all the evidence and allow the Worker to state his case. Instead, a decision to dismiss him appears to have been made following a number of investigation meetings where the Worker was allowed review some of the evidence against him.

I note the decision of the Labour Court in UD/17/24, Pottle Pig Farm v Valery Panasov. In finding for the Complainant the Court stated:           

The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.

I also note Section 6 of the Code of Practice on Grievance and Disciplinary Procedure (SI 146/2000):

The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

·         That employee grievances are fairly examined and processed;

·         That details of any allegations or complaints are put to the employee concerned;

·         That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·         That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

·         That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

In the circumstances the Employer has clearly fell short of the standard expected by both the code of practice and the position set out by the Labour Court.  

Redress:

The Worker was paid €560 a week and has not yet gotten a job.

His loss arising from the dismissal is approximately €12,880.

I asked the Worker about his efforts to obtain work since his dismissal. He outlined that he is in receipt of jobseekers benefit and attends any job activation meetings he is sent to by the intreo office.

I am of the view that the Worker has failed in his duty to mitigate his loss by proactively looking for jobs.  I am also of the view that he contributed significantly to the dismissal. On the day in question he ought not to have approached X. He could have raised his grievances further up the line if he was getting no support from his supervisor.

In the circumstances I recommend that the Employer pay the Worker €4000 in compensation.

I also remind them of their ongoing obligation to all of their workers’ health and safety and recommend that they take steps to challenge bullying and harassment in the depot where these events occurred.