ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007013
Food Manufacturing Plant
15th May 2017
Judy McNamara IBEC & A Kain Ibec, Jennifer O’Donoghue, Marie Maddock
4th December 2017
Barbara Mebtouche Solicitor of O’Hanrahan Sols,
Judy McNamara & Niamh daly of IBEC, Jennifer O’Donoghue, Marie Maddock
V. Kodiec Interpreter
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 04/12/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed as a General Operative from 1st June 2013 to 28th November 2016. He was paid €459.00 gross per week. He has claimed that he was unfairly dismissed and has sought compensation.
Summary of Respondent’s Case:
The Respondent’s representative stated that on 7th September 2016 a Supervisor made a complaint about the Complainant’s behaviour, citing a number of issues; claiming that nobody was working, leaving his station without permission, asked to return to his station, going home alleging stress, invading the supervisor’s personal space, asking to have his heart rate felt, harassing the supervisor by following him.
On 8th September 2016, the Complainant left his station without permission to represent a colleague, this was despite him having received a final written warning two weeks earlier for unauthorised absence from his station. On the same day, the Complainant made a complaint against the same supervisor regarding his treatment of himself and his Eastern European colleagues. On 9th September, another supervisor reported that the Complainant felt that he was being targeted by his supervisor. That supervisor reported that the Complainant was observed getting in the face of his supervisor. Another member of management reported that she had observed the Complainant shadowing his supervisor, also running up and down the hall then entering the supervisor’s office and bending down into the supervisor’s face. Arising from the complaint the Complainant was placed on paid suspension pending an investigation. On 12th September, the Complainant sought an explanation of the accusation against him and he referred to his complaint against the supervisor. The Senior Site Supervisor conducted an investigation and held a number of meetings/interviews. On 7th September, the Complainant had reported other staff to a supervisor alleging that he is treated less favourably to colleagues. A supervisor confirmed the complaints made against the Complainant. On 16th September, a member of staff reported that the Complainant was going up to staff and standing close to them and listening to what they were saying, then he would walk off and go on the phone as if he was telling somebody what was happening. He confirmed that the Complainant stormed into the office. He also confirmed that the Complainant was constantly standing over staff just to antagonise them but he was not overtly aggressive. Another employee confirmed to the investigation that he observed the Complainant running around the premises like a “madman”. Other employees confirmed his behaviour. It was then pointed out that a number of employees did not want to work with him. The Respondent then held a meeting with the Complainant to deal with his complaint against his supervisor. It was agreed that the Complainant would supply more details about his complaint. These were never received. A further meeting took place to address the complaints made against the Complainant. Statements were discussed, some information was redacted in the interests of confidentiality. The Complainant objected to this alleging tampering with the statements. He agreed to attend the investigation meeting under protest. The Complainant denied the complaints against him. A disciplinary meeting took place on 15th November 2016. An investigation meeting took place on 16th November regarding the Complainant’s complaint against his supervisor. On 28th November 2016 he was issued with an outcome letter to the disciplinary investigation into the Complainant’s conduct. The decision was to terminate the employment. He was given the right of appeal. He appealed the decision and it was heard on 19th December 2016. On 14th December, the Respondent issued its findings into the investigation into the Complainant’s complaint against his supervisor. His complaints were rejected, it was found that the supervisor had acted reasonably. The outcome was issued on 22nd December and the decision to dismiss was upheld.
It is their position that he was dismissed fairly by reason of his conduct. They cited Mullane V Honeywell Aerospace Ireland Ltd UD 111/2008 in support. They carried out a detailed investigation and disciplinary investigation. Fair procedures were applied. He was made aware of the allegations against him. He was given the right to defend himself, the right to representation and the right of appeal. It was reasonable to conclude on the balance of probability that the Complainant had behaved in intimidating and harassing manner. The decision to dismiss was proportionate due to the severity of his conduct. His actions and his denials of his actions has damaged the trust and confidence between the parties. The final written warning that was on his file was not relied upon. It was not possible that he could return to work due to his unacceptable behaviour. He was deemed to be a threat to other employees. He had become unmanageable. The dismissal was fair.
This claim is rejected.
Summary of Complainant’s Case:
On 29th August, the Complainant was issued with a final written warning regarding attendance and clockings. He was given this warning despite the fact that other employees were not investigated. The company failed to apply a lesser sanction of verbal warning or first written warning. He appealed this sanction but it was upheld. On 9th September, the company acting upon a verbal report and statements of complaint against him suspended him on pay pending an investigation. He was called to an investigation meeting despite not getting details of the allegations made against him. In the meantime, he raised a complaint against his supervisor. This complaint was ignored by the Respondent, they failed to carry out an investigation nor any action was taken to solve this issue. Eventually it was discussed on 23rd September 2016. Nothing happened until 14th December 2016 he was advised that there was no basis for investigation. A second meeting dealt with the complaints against the Complainant. He was only given a few minutes to read these statements and some had been tampered with and deletions marked. He was denied fair procedure as he was not given the information needed to defend himself. The Respondent threatened to go ahead with the investigation with or without him taking part. He was not given an investigation report. He attended a disciplinary hearing on 15th November 2016. During this meeting his own grievance against his supervisor was discussed, which is inappropriate as these were two separate matters. On 28th November, he was notified in writing that his employment would be terminated. An appeal hearing took place on 19th December 2016, however the HR Manager was present at that meeting an she had also been part of the disciplinary hearing This was objected to but ignored by the Respondent. The decision to dismiss was upheld.
It is his position that the allegations against him do not amount to bullying and harassment. The HSA definition refers to repeated actions. No repeat actions were presented. One cannot bully someone once. To say that someone does something inappropriate, is angry or hostile on one occasion amounts to bullying is wrong and unfair. The behaviour may be annoying but it is not bullying. Harassment is an entirely different set of behaviours, it is discriminatory behaviour due to a person’s race religion etc. There are 9 grounds. So, one incident does not constitute bullying. Nothing in the witness statements gives grounds for bullying investigation. “hands everywhere” “walking up and down” is not bullying. It is his position that he was being watched not vice versa. He denies ever threatening anyone. The decision to carry out an investigation was premature, the decision to carry out a disciplinary hearing was inadequate to allegations and the decision to dismiss was absolutely disproportionate and should have been reversed at appeal. The impartiality of those carrying out the investigations is questionable. He believes that suspension is a sanction despite being on full pay. The decision to dismiss was taken before the process was complete. The process was just a formality. The decision to dismiss is the most severe penalty. The decision should be carefully considered and not taken lightly. It should be proportionate to the allegations. This was not the case in this situation. Other employees were investigated but only the Complainant was dismissed. The supervisor stated that the Complainant needed to be removed and he was dismissed. The Respondent did not follow its own procedures and policies. It is clear that the Complainant had a valid claim for bullying against the company. The behaviour of other staff and management tick all the boxes of the definition of bullying. Despite his complaint about this the Respondent took no action. The Respondent failed to comply with the Code of Practice for Employers and Employees on prevention and Resolution of Bullying at Work 2007.
This dismissal was unfair, unjustified and disproportionate. He is seeking compensation. He applied for general operative and technical jobs without success. He became self-employed on 9th July 2017 initially earning €300 per week. Since August 2017 he earns €400 per week.
Findings and Conclusions:
I note that this dismissal resulted from a complaint by the Complainant’s supervisor concerning his conduct and behaviour.
I note that during the investigation a number of witnesses gave evidence that corroborated the supervisor’s position.
I note that this gave rise to very serious concern by the Respondent concerning his conduct and behaviour and resulted in a decision to escalate the matter to a disciplinary investigation.
I note that this investigation led to a decision to dismiss.
I note that it was found that the Complainant had committed a series of behaviours that ranged from refusal to carry out a lawful instruction, to threatening behaviour, to behaving in a disturbed fashion.
I note that it was found that some employees felt threatened by his conduct and behaviour.
I note that he was in receipt of a final written warning but for an unrelated matter and it did not influence the decision to dismiss.
I find that the Complainant had no disciplinary sanction on his record for this conduct and behaviour.
I am concerned that the Respondent believed that they had no option but to dismiss.
I am satisfied from the evidence presented at the hearing that the Complainant had conducted and behaved in an unsatisfactory manner and that he was becoming unmanageable.
However, I find that the punishment did not fit the crime.
I find that the Respondent should have given him an opportunity to address his conduct and behaviour. He deserved one last chance to mend his ways.
Therefore, I find that the matter was not sufficiently grievous to warrant instant dismissal.
I find that the dismissal was substantively unfair.
I note that following the receipt of a complaint from his supervisor the Respondent suspended him on full pay pending an investigation.
I note that he was made aware of the allegation made against him.
I note that he was given the right of representation and his union official was with him at all stages of the investigation, disciplinary and appeal hearings.
I note that the Respondent did not rely upon the final written warning when considering the sanction to be imposed.
Therefore, I find that the decision to dismissal was based upon the outcome of the investigations into the complaint made against him.
I find that the Respondent did not adequately consider alternatives to dismissal given there was no previous history regarding this particular matter.
I find the sanction of dismissal was disproportionate to the alleged infractions.
I note that the redress sought is compensation.
I note that the Complainant made efforts to mitigate his loss and eventually decided to become self-employed.
I find that the Complainant has contributed considerably to his dismissal, through his behaviour and conduct.
On the balance of probability, I find that his conduct and behaviour was unacceptable. I also find, on the balance of probability, that he was becoming unmanageable.
These concerns and finding must be considered when deciding the quantum of the award.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have decided that the dismissal was both substantively and procedurally unfair.
I have decided that compensation is the appropriate redress.
I have decided that the Respondent should pay the Complainant compensation of €6,000, (13 weeks) which takes into account his considerable contribution to his dismissal.
This is to be paid within six weeks of the date below.
Dated: 2nd May, 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly