ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011525
Parties:
| Complainant | Respondent |
Anonymised Parties | Chef | Hotel |
Representatives | Des Courtney SIPTU, Barbara Wilson | Niamh Daly IBEC, Sharon Cleman,Barbara Farrell, Emma McDonnell, Deirdre O’Sullivan |
Complaint:
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-00015308-001 | 25/10/2017 |
Date of Adjudication Hearing: 26/03/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
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.
Background:
The Complainant was employed as a Chef from 20th September 2002 to 30th August 2017. He was paid €609.96 per week. He has claimed that he was unfairly dismissed and has sought re-instatement. |
Summary of Respondent’s Case:
An incident took place on 27th July 2017 in the main kitchen where it was alleged that the Complainant had assaulted a Kitchen Porter. The incident was reported by a witness to the Duty Manager. The allegation is that the Complainant threatened to kill the Kitchen Porter. The HR Manager viewed the CCTV footage and then placed the Complainant on paid suspension pending the outcome of the investigation. The Complainant was given the terms of reference of the investigation and was given the right of representation. The HR Manager carried out the investigation. A number of witnesses were interviewed. Four witnesses gave statements that they observed the Complainant pick up a knife and brandish it towards the Kitchen Porter. The Complainant was given copies of the witness statements. At the investigation meeting he was shown the CCTV footage and asked for his description of what had occurred. The Complainant was asked if he hit the Kitchen Porter. He stated “No he had his hands in front of him and I slapped his hands away, I should not have. I did not hit him I hit his hands. I saw a knife on the edge of the counter and I thought it might fall on the ground so I picked it up and moved it aside, so I wouldn’t”. He then stated “I was provoked to do this. I warned him not to call me that and he still did”. At a second meeting the Complainant changed his statement in the light of witness evidence to the incident. When asked if he threatened to kill the Kitchen Porter he replied “I might have, but not when I had the knife in my hand” I just hit his hand not his head. I made a mistake I am sorry. I shouldn’t have touched the knife”. He then confirmed that there had been an argument, that he picked up the knife and that he also had made an offensive remark towards the Kitchen Porter, contrary to his initial evidence. The matter was then escalated to a disciplinary hearing chaired by the Accommodation Manger. He was invited to the meeting with five days’ notice and given the right of representation and all the documentation connected with the case. He was advised that the outcome may result in the termination of his employment. The outcome of this investigation was that it was decided that he had committed an act of gross misconduct. The Investigator considered the proportionality and reasonableness of the sanction of dismissal prior to implementing it. The Complainant did not convince the Investigator that he had regretted what he had done. His employment was terminated on 30th August 2017. He was given the right of appeal. His appeal was heard by the Financial Controller on 27th September 2017. He was represented by his union official. At this hearing he said he told the Kitchen Porter “not to call me that. I warned him four times and then said I will kill him if he calls me that again. I didn’t have the knife in my hand when I said this”. At no time, did he accept his behaviour was unacceptable or to apologise or that he regretted it. The decision to dismiss was upheld. They cited Looney & Co v Looney UD 843/1984 in support. They stated that they complied with SI 14/2000 and acted reasonably. The actions of the Complainant contributed fully to his dismissal. This claim is rejected. They stated that re-instatement is not an option given the seriousness of the incident. |
Summary of Complainant’s Case:
The Complainant stated that an incident occurred on 27th July 2017. The allegation of assault and a threat to kill a colleague was refuted as untrue. His only contact with the colleague, a Kitchen Porter was to brush his hand away. The knife was in his hand and he did say the words “I will kill you” but this was an empty threat as another colleague stood in between them. The process was not compliant with SI 146/2000. He did not receive signed copies of the witness statements prior to the meeting of 2nd August 2017. He was not aware CCTV could be used during the investigation. The investigator was not impartial during the investigation and referred to an incident in 2012. He stated that at the incident on 27th July 2017 he had been provoked by a colleague who had taken a roll of cling film from his workstation. The colleague also used swear words that he found offensive because it referred to his mother, who is deceased. The unsigned witness statements refer to the incident. They referred to “I think” he hit him on the arm, I think he said I’ll kill you and my mother isn’t ****er”. One witness stated that the Complainant picked up a knife and pointed it in the Kitchen Porter’s face, at first I thought it was a joke. The Kitchen Porter stated that the Complainant told him that if he calls him a mother****er again he would kill him. The Complainant’s rights were infringed during the investigation. CCTV was used without permission. Employees are comprehensively protected by both the Data Protection Act and emerging law relating to privacy. During the investigation, he believed that if he explained what had happened to cause his behaviour and apologise for his part in the disagreement the matter would be resolved. It wasn’t until 8th August when he was invited to a disciplinary hearing that he realised how serious the Respondent was taking it. He never admitted to an assault as alleged in the letter of dismissal. He picked up the knife and then put it down as soon as the Kitchen Porter was told to go away. He appealed the decision to dismiss and he stated how sorry he was and that he had worked for many years there and assured that no such behaviour would recur. He had concerns about the conduct of the appeals hearing. Other incidents relating to 2012 were referred to. The appeals decider referred to the seven points of appeal but then upheld the decision to dismiss. It is his position that procedures were not followed and the terms of reference were not adhered to. The investigation letter did not inform him that the allegation made against him was viewed as gross misconduct. The use of CCTV footage was in breach of the Data Protection Act. They failed to consider their mitigating circumstances of provocation, taking his equipment and disrespecting his mother. They were wrong to refer to a past incident in 2012. All these matters should mean that this dismissal was unfair. The Respondent did not act in a fair and just manner as the sanction of dismissal was disproportionate. He has had great difficulty in getting work. He has applied to an average of ten positions per week. He found work for six weeks over the Christmas period.
Findings and Conclusions:
Substantive matters
I note that the fact of an altercation on 27th July 2017 is not in dispute. I note that it is accepted that the Kitchen Porter took a roll of cling film and that this annoyed the Complainant. I note that the Kitchen Porter used provocative language to the Complainant and that the Complainant became very upset to a reference to his mother who was deceased. I find that a language and cultural divide has compounded this issue. I find that an altercation took place and the Complainant had a knife in his hand and had used the words “I will kill you”. I note that the Respondent formed the view that this was a serious threat whereas the Complainant referred to it as an empty threat. I find that there was provocation. I find that the CCTV footage shown at the hearing did not convey a seriously dangerous situation. I did not form the view the Complainant had intended to kill the Kitchen Porter. I note that he has been in that employment since September 2002 and there were no other incidents of physical threats referred to. I note that the Kitchen Porter did not file a complaint about this incident. I find that the decision to dismiss was disproportionate as that punishment did not fit the crime. I find that the decision to dismiss was substantively unfair. I find that the Complainant has contributed significantly to his dismissal. Procedural Matters I note that the Complainant was advised of the allegations made against him. I note that he was placed on paid suspension pending the outcome of the investigation. I note that he was invited in writing to an investigation hearing. I note that he was given the right of representation. I note that he was advised on 8th August that this process could ultimately lead to his dismissal, this was at the investigation stage. I note that the matter was escalated to a disciplinary investigation. I note that he was invited to a disciplinary hearing on 23rd August 2017 and given the right of representation. I note that he was again advised of the potential outcome of dismissal. I find that I have no difficulty with the Respondent using CCTV footage to assist the investigation. I did not find difficulties with the witness notes as their evidence was not disputed. I did not find that the reference 2012 to have had any serious impact on the decision. I find that the Respondent did not fully explore the alternatives to dismissal. I find that the decision to dismiss was disproportionate. Regarding the mitigation of loss, I find that despite his best efforts to find work it has mainly been unsuccessful. I am satisfied that he has endeavoured to mitigate his loss. I find that the dismissal was procedurally fair regarding the investigation and disciplinary investigation. I find the dismissal was procedurally unfair concerning not properly considering the provocation in this case and the consideration of alternatives to dismissal. Overall I find that this dismissal was unfair as the sanction of dismissal was disproportionate. I find that compensation is the appropriate redress in this case. I find that the Complainant has significantly contributed to his dismissal and this must be reflected in the quantum of the award. |
Decision:
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 unfair.
I have decided that the Complainant has significantly contributed to his dismissal, which will be reflected in the award.
I require the Respondent to pay the Complainant €6,000 within six weeks of the date below.
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Dated: 10th July, 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Unfair Dismissal |