EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Keita Amidou, UD787/2012
TE137/2012
against the recommendation of the Rights Commissioner in the case of:
Occipital Limited,
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey BL
Members: Mr. D. Peakin
Mr. C. Ryan
heard this appeal in Dublin on 29 August 2013 and 7 March 2014
Representation:
_______________
Appellant(s):
Mr. Robert Crowley BL instructed by
Collins Crowley, Solicitors,
2a Christchurch Hall, High Street, Dublin 8
Respondent(s):
Ms. Róisín Bradley for Ms. Amanda Manley, IR/HR Executive, IBEC,
Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
This case came to the Tribunal on employee appeal relating to Rights Commissioner Recommendation r-109939-ud-11/JT under the Unfair Dismissals Acts, 1977 to 2007, and Rights Commissioner Decision r-109941-te-11/JT under the Terms of Employment (Information) Acts, 1994 and 2001. However, the latter of the two appeals was withdrawn at Tribunal hearing stage.
The unfair dismissal hearing revolved around an allegation that the appellant, an Ivory Coast national, had struck a Polish colleague (LP), one of several Poles employed by the respondent at the appellant’s workplace. It was accepted that there had been an incident. The respondent investigated and found the appellant to have been guilty of gross misconduct.
After the Rights Commissioner made a finding in favour of the respondent there was an employee appeal alleging that he had not taken into account all the pertinent facts in arriving at his decision.
The appellant had been a general operative on the site of one of the respondent’s client sites.
The respondent’s position was that the appellant had elbowed LP in the chest. The Tribunal paid particular attention to the sworn testimony of both LP and the appellant as to the force of this undenied contact and the relative positioning of LP and the appellant at the time of the contact. Both employees were grown men. It appeared that LP had, subsequent to the incident, worked quite closely to the appellant. The appellant had had a clean record over his three years with the respondent. There had been a prior incident but he had been exonerated.
The respondent contended that the evidence of three others had corroborated LP’s version of events and that there was an even greater onus on employees to behave safely on a site where there was a lot of machinery, crates and tools with sharp edges. It was submitted that any perceived flaws in the investigation could not be fatal to the respondent’s case. The appellant had been allowed to plead mitigating circumstances, had not internally appealed his dismissal to the respondent and it was submitted that he had undoubtedly contributed to his dismissal. A precedent was cited as authority for the proposition that, when best practice might not have been followed, procedural deficiencies did not necessarily render a dismissal unfair.
The appellant alleged that he had had to communicate with his supervisor when colleagues would not engage with him and that the incident for which he had been dismissed had been covered by CCTV. (The respondent told the Tribunal the warehouse in question was six times the size of Croke Park and that there had been no camera trained on the incident when it occurred. No-one suggested that the appellant could have known this.) The appellant acknowledged that he had not appealed his dismissal internally. He engaged with a solicitor and was offered relocation with the respondent but no longer had any trust in the employer that had dismissed him.
Determination:
The appeal under the Terms of Employment (Information) Acts, 1994 and 2001 was withdrawn at Tribunal hearing.
Regarding the appeal under the Unfair Dismissals Acts, 1977 to 2007, the Tribunal heard sworn testimony from the respondent (including interpreter-aided testimony from the alleged victim of a blow from the appellant) as well as testimony from the appellant himself. The Tribunal also had the benefit of documentation and legal submissions from the representatives.
When the Tribunal deliberated on the case it was felt that the appellant had been badly treated and that the respondent’s procedures had not been sufficient but there had not been adequate documentary evidence of attempts at mitigation of the appellant’s pre-2014 loss. It was noted that the appellant might not have been eager to be all that the respondent wanted e.g. by being prepared to work in an alcohol bay. However, it was also felt that he might not have been well-
liked by colleagues inclined to bond due to shared nationality. It was especially regrettable that no camera of the respondent was on the incident particularly as LP worked with compatriots and the appellant had felt isolated at that workplace where he was surrounded by Europeans especially those of LP’s nationality.
While the Tribunal does not dispute that the appellant’s supervisor did his best it was felt that the appellant deserved at most a reprimand for what might have been little more than an accident. It was not denied that the respondent’s procedures had been somewhat deficient.
However, though the Tribunal heard that the appellant was the father of several children and, as such, could be believed to have wanted to find new employment, there was insufficient proof that he had been actively seeking work throughout his time between his dismissal and the final Tribunal hearing. Also, he chose not to accept offers of re-engagement by the respondent at another location but continued down the road of litigation.
Although there was insufficient documentation furnished to the Tribunal showing the appellant’s attempts at mitigation of his loss, the Tribunal did feel that it was disproportionate to have dismissed the appellant for what might have been no more than a workplace jostle. In conclusion, the Tribunal allows the employee appeal relating to Rights Commissioner Recommendation r-109939-ud-11/JT under the Unfair Dismissals Acts, 1977 to 2007, and, reversing the said recommendation, deems it just and equitable to award the appellant the sum of €25,000.00 (twenty-five thousand euro) under the said legislation.
It is noted that the appeal against Rights Commissioner Decision r-109941-te-11/JT under the Terms of Employment (Information) Acts, 1994 and 2001, was not prosecuted before the Tribunal and that, in fact, it was withdrawn at Tribunal hearing stage.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)