ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009934
A General Operative
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: 18/06/2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
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 by the respondent since 2007. Her employment ended when she was summarily dismissed for gross misconduct on 8th February 2017. The complainant was paid €400 net per week. The complainant contends that she was unfairly dismissed and is seeking compensation in relation to her complaint.
The respondent provided written submissions at the adjudication hearing. The complainant’s representative made verbal submissions and furnished written submissions to the WRC on 25th June 2018.
Summary of Respondent’s Case:
The respondent contends that the dismissal was not unfair. The respondent stated that the incidents which led to a disciplinary process and the subsequent dismissal of the complainant involved a number of of physical altercations between the complainant and a colleague.
The respondent stated that two incidents arose between the two colleagues. The first incident occurred on 12th January 2017. The respondent stated that the CCTV footage of the first incident confirmed that the complainant’s colleague had firstly kicked the complainant on the rear and the complainant then approached her colleague and raised her hand and foot towards her. The respondent confirmed that when a second incident occurred on the 14th January 2017, both incidents became the subject of a formal investigation. The respondent submits that both the complainant and her colleague were suspended pending the investigation and although they were suspended without pay initially, this was in error and was rectified within a short period of time.
The respondent stated that there was no CCTV footage of the incident on 14th January 2017 as it had taken place in the Ladies changing room. The respondent confirmed that the incident on 12th January 2017 appeared to have begun in good humour but had continued and became much more serious on 14th January 2017.
The respondent submits that, on the basis of the statements of the complainant and her colleague and the statements of the witnesses to what had occurred, it decided that both employees were guilty of gross misconduct and were summarily dismissed by the Managing Director on the 8th February 2017.
The respondent stated that the complainant appealed the decision and an appeal hearing took place on 27th February 2017. The respondent confirmed that given the seriousness of what had occurred, it upheld its decision to dismiss both employees for gross misconduct.
The respondent cited a number of precedent cases in support of its position; McLoughlin V Setanta Insurance Services Limited 23 ELR 57, O’Sullivan v Mercy Hospital Cork  IEHC, Loftus and Healy v An Bord Telecom (13 February 1987, unreported, HC), Elia Erian Aziz v The Midland Health Board  E.L.R. 48, McCarthy v O’Sullivan Bros DIY (UD800/1989)/ELR 44, Bank of Ireland v Reilly  IEHC 241, Coad v Eurobase (UD1138/2013) and Sheehan v Continental Administration Co Ltd (UD858/1999).
Summary of Complainant’s Case:
The complainant submits that her dismissal was unfair on the basis that she had been denied her right to fair procedures and natural justice. The complainant also stated that the sanction of summary dismissal for gross misconduct was excessive and disproportionate considering she had not instigated the altercation on 12th January 2017 which ultimately led to a more serious incident taking place on 14th January 2017.
The complainant stated that she was unfairly suspended without pay and was subject to a flawed and unfair disciplinary process. The complainant contends that there were numerous flaws in the process namely, a delay of 10 days in beginning the investigation, not providing adequate notice to the complainant of the investigation hearing, not furnishing the complainant with details of the complaint against her, the failure to allow the complainant to have legal representation at the investigation, not providing the complainant with a translator, the continuous involvement of the Managing Director and Owner of the respondent in all aspects of the investigation and disciplinary processes, the failure of the respondent in providing CCTV footage of the incident on 12th January 2017, the failure to take a statement from a witness when requested to do so, the failure of the respondent to apply a proportionate sanction other than dismissal, the comments made in relation to the relevance of a witness statement that had not yet been taken, the failure to advise the complainant to take independent legal advice prior to the disciplinary hearing and the improper appointment of the Managing Director’s father as the appeals officer following the decision of the Managing Director to dismiss the complainant.
The complainant stated that, given her low level of culpability in relation to the incidents that occurred on 12th and 14th January 2017, a fair and transparent disciplinary process, had one taken place, would have resulted in a much lesser sanction.
The complainant contends that the respondent’s failure to act promptly after the incident of 12th January 2017 contributed to an escalation of events between the complainant and her colleague which led to the more serious incident taking place on the 14thJanuary 2017. The complainant stated that the subsequent flawed and procedurally unfair investigation and disciplinary process resulted in an excessive sanction where the complainant, who was not responsible for what had occurred, was summarily dismissed for gross misconduct. The complainant is seeking compensation in relation to her complaint.
The complainant’s representative cited the cases of Bank of Ireland v Reilly  IEHC 228 and Lyons v Longford and Westmeath Education and Training Board  IEHC 272 in support of its position.
Findings and Conclusions:
Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
The complainant was dismissed for gross misconduct following two physical altercations with another employee of the respondent. The complainant contends that she was denied the principles of fair procedures and natural justice. The complainant also stated that the sanction was excessive and disproportionate to what had occurred, especially in circumstances where she had not been the instigator of the incidents.
I find that there was a number of procedural irregularities in the investigation and disciplinary processes carried out by the respondent. The complainant outlined a number of procedural issues that she contended rendered the process unfair. I am of the view that the most serious of these procedural issues was the involvement of the Managing Director in both the Investigation and Disciplinary processes and the appointment of the Managing Director’s father who was also the owner of the business as the person who conducted the appeal of the dismissal. The entire process must not only be fair but must also be seen to be fair and in this case, I accept the complainant’s contention that the disciplinary process which led to her dismissal and the appeal process which confirmed the dismissal were procedurally unfair.
Contribution to Dismissal
The complainant stated that she had sought the statement of a witness to the incident of the 14th January 2017 and that this had not been forthcoming prior to her dismissal. The Managing Director is alleged to have said that the witness statement wouldn’t make any difference. While the complainant felt this was inappropriate, the Managing Director confirmed that this was said in the context of having read all of the other witness statements in relation to the incidents.
In reviewing the statement in question, the witness confirmed that the complainant had made an initial comment to her colleague which resulted in the colleague kicking the complainant in the rear. I find that although the complainant stated that she did not know why she had been kicked initially, her comment to her colleague seems to have initiated the incident. Having regard to all of the evidence on this issue, I find on balance that the complainant was equally responsible for the initial incident which led to second incident and subsequent disciplinary process.
The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:
‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind thatno reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’
In all of the circumstances of this complaint, I accept that despite the initial jovial nature of what occurred on 12th January 2017, the physical altercation that occurred on the 14th January 2017 was “very bad behaviour of such a kind thatno reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer “. Accordingly, I find that the actions of the complainant and her colleague amounted to gross misconduct.
Band of Reasonable Responses.
In relation to the Complainant’s summary dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:
“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”
Having considered the matter, I find that the decision to summarily dismiss the complainant was within the range of reasonable responses of a reasonable employer. The respondent sought witness statements and established through its investigative process that what had occurred between the two colleagues amounted to gross misconduct. The complainant also admitted to what had happened and stated that while it had all started as a joke on 12th January 2017 it had become extremely serious during the interaction that took place on 14th January 2017.
Mitigation of Loss
The complainant stated that she was in receipt of Jobseekers Benefit from March 2017 until July 2017. The complainant confirmed that she did not apply for any jobs in that period and returned to her home country in July 2017. The complainant’s losses were quantified at €12,090 (excluding future losses).
In considering this issue, I refer to the EAT Decision of Coad v Eurobase (UD1138/2013) in relation to the complainant’s efforts to mitigate her loss. In that case the EAT found that the complainant’s efforts had not met the standard as set out in the case of Sheehan v Continental Administration Co. Ltd (UD858/1999) which stated:
“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…..the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”
In the instant case, the complainant did not make any attempt to mitigate her loss.
In conclusion, and having regard to all of the circumstances of the complaint, I find that the dismissal of the complainant was substantively fair but procedurally unfair. Having found that the complainant was responsible for the events that led to her dismissal and did not seek to mitigate her losses, I find that awarding a significant level of compensation is not appropriate in this case.
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.
Having considered all of the submissions of both parties and the evidence adduced at the hearing of this complaint, I declare that the dismissal of the complaint was substantively fair but procedurally unfair. The respondent is directed to pay the complainant compensation of €1,000 within 42 days of the date of this decision.
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Unfair Dismissal, Gross Misconduct. Procedural Unfairness.