ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017530
A General Operator
A Manufacturing Company
Paul Hardy SIPTU
Padraic Lyons BL instructed by Kieran Johnston MacCarthy Johnston Solicitors
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: 09/07/2019
Workplace Relations Commission Adjudication Officer: Peter O'Brien
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant was appealing a decision to dismiss him for gross misconduct as unfair in the circumstances of the case. Both parties made lengthy submissions on the facts of the case and with legal argument to support their cases. A detailed summary of both submissions is contained below. The Complainant sought reinstatement for the alleged unfair dismissal.
Summary of Complainant’s Case:
The Complainant was employed as a General Operative from 1999 until his dismissal for gross misconduct on August 31st, 2018.
On July 4th, 2018 the Complainant was approached by a colleague, Mr. X, while he was on his knees at a vent and Mr. X was “angry and had a head of steam” and leaned over the Complainant and confronted him. Shortly before this Mr. X had said derogatory words to the Complainant.
It is common ground that Mr. X had in his possession a large sheet of cardboard where an offensive drawing of him was on it. Mr. X blamed the Complainant for the drawing, but this was denied by the Complainant and there is no evidence implicating him. The Complainant was hit by Mr. x with the drawing and he defended himself with a ruler he had in his hand for the cleaning of the vent he was working on.
The Complainant was suspended on July 7 pending an investigation. The investigation panel found, based on evidence of Mr. Y, that he didn’t see Mr. X hit the Complainant with the Cardboard and that the injury to Mr.X “was not an act of self defence to a physical attack”. The report also refers to the ruler as an iron bar throughout. The report also found, which was not part of its remit, that the Complainant had bullied Mr. X and no allegation of bullying was ever put to the Complainant.
The Complainant was given a copy of the Investigation report on August 20th for review. The Complainants Representative made the point that the Complainant had not been given the opportunity to cross examine Mr. X and was told to put any questions on this issue in writing to the Investigator.
The Complainant was invited later to a disciplinary meeting on August 29th and given answers to queries raised by his Representative. The disciplinary meeting was held on August 31st and the Company Manager conducting the Hearing read out a prepared statement notifying the Complainant of his immediate dismissal. At no stage was the Complainant or his Representative afforded the opportunity to speak.
The Complainant appealed his decision, but it was affirmed after an appeal hearing on September 12th, 2018.
The Representative for the Complainant cited the Decision in Pottle Pig Farm & Panasov (UDD1735 (July 2017) to support their case “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.”
The decision maker had accepted the investigation report and did not give any relevance to the comments made on the Complainants behalf to do with the report. The decision maker also accepted in making the dismissal decision that Mr. X was being bullied by the Complainant, but this was not part of the remit of the investigation and this allegation was never put to the Complainant and he was never given an opportunity to advance a defence. The question of bullying was attempted to be down played in the appeal decision, but it could be compared to Schrodinger’s Cat; it was simultaneously relevant and not relevant to the decision to dismiss.
It was put at the Appeal Hearing that since the Complainant was not the instigator of the confrontation, Mr. X should be the more responsible for incident, but the Chair of the Hearing felt that was a separate issue to be dealt with Mr. X. It was unreasonable for the appeal Hearing not to address this point more.
It is undisputed that the Complainant was on his knees when hit by Mr. X with the cardboard box and this would be a bizarre position for a person (the Complainant in this case) to be the physical aggressor or intent on physical aggression. It was accepted that Mr. X leaned over and hit the Complainant with the cardboard box.
There was undue regard given to the evidence to the witness that he did not see Mr. X hit the Complainant or that he could see Mr. X being struck (which is not denied) but as a response to being provoked by Mr. X. It follows that the Investigation panel should have found it could not establish whether Mr.X struck the Complainant during the incident or alternatively, based its finding that the Complainant had not been struck by Mr. X on its own assessment of the two principles. It would also have been reasonable for the panel to assess why a long serving staff member with no previous disciplinary issues should have made an unprovoked attack on Mr. X. It was incumbent on the decision maker to give the benefit of the doubt, if there was doubt, to the worker accused of gross misconduct.
The reinvestigation conducted did not find witnesses that saw the Complainant struck by Mr. X and the disciplinary decision maker chose to focus on this when making their own investigation.
We contend that the decision to dismiss a long-standing member of staff with an unblemished record was, in the context of this matter, unreasonable, disproportionate and therefore unfair.
The Complainant quoted Lyons & Longford Westmeath ETB (2007) IEHC 272 to support their case that the denial of cross examination disadvantaged the Complainant to support his case “it is clear that as a matter of law and as a matter of fair procedure an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence”.
It was unfair for the decision maker to carry out a re-investigation. The failure to disclose the “simulation” exercise was unfair to the Complainant.
It was not appropriate to pass on any comments on the Investigation report to another person than the decision maker.
The Complainant was not afforded the opportunity to present a defence at his disciplinary hearing and was just presented with a prepared statement and this alone renders the dismissal unfair. At the appeal Hearing it was argued that giving the Complainant the opportunity to comment on the Investigation report was enough and this is not accepted as remotely adequate. The natural justice principle of audi alteram partem means that both sides must ne heard.
The Respondent was in breach of SI 146 in that they did not give “the employee concerned is given the opportunity to respond fully to any such allegations or complaints and is entitled to a fair an impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee.”
The Complainant claims he was unfairly dismissed and seeks redress in the form of reinstatement.
Summary of Respondent’s Case:
The essential issue which falls to be determined is whether the Respondent acted reasonably in dismissing the Complainant from his employment by reasons of an admitted assault perpetrated by the Complainant upon a colleague, Mr. X on 4 July 2018.
It is not in dispute that on the day in question a heated exchange took place between the Complainant and Mr. X at the Respondent's premises in Galway. It is not in dispute that the Complainant struck Mr. X forcefully and in the face using an iron bar (otherwise described as an iron ruler) as a result of which Mr X sustained a significant facial laceration and required medical treatment as a result of which he was certified unfit for work.
The explanation provided by the Complainant for this serious incident is that he was acting in self-defence on the alleged basis that he had been attacked by Mr. X with a sheet of cardboard. It is a notable feature of the Complainant's written submission that his appeal seems to be predicated upon a number of alleged procedural failings - none of which are admitted - in circumstances where the essential issue to be determined is not in actual dispute, i.e. that the Complainant hit his colleague in the face with a metal bar I ruler.
Insofarasthereisarelevantfactualdispute,thatdisputecentresonthequestionof whetherMr. Xhad,infact,hittheComplainantwithapieceofcardboardbeforethe Complainantthenstruckhiminthefaceornot.Asappearsfromthecarefuldisciplinary processconductedbytheRespondent,theconclusionarrivedatwasthaton the preponderanceof evidenceavailable,theComplainant'sversionofeventswasnot acceptedandthatMr. Xhadnot,infact,firststruckhimwithapieceofcardboard.
It is submitted that this is a determination of fact which the Respondent was fully entitled to arrive at based on the information before it. However, notwithstanding this, it is further submitted that even if the narrative of events provided by the Complainant were accepted, none of this could justify the type of assault which then took place -whether in self-defence or otherwise.
In this regard, the decision of the Respondent's HR Manager is unimpeachably reasoned and states as follows:"You have admitted that you struck Mr. X with an iron ruler, which resulted in a facial injury to him. You maintained that you acted in self-defence. It stands to reason therefore that this was a conscious decision on your part and not an accident. You acted with a definite purpose and clearly knew what you were doing in striking a fellow employee in [SIC] the head with an iron ruler.
I do not believe that the altercation with Mr. X warranted such a response. As I have stated above, I believe that the act was an excessive use of force. The decision to strike Mr. X in the head with such an instrument could easily have had fatal consequences or resulted in a loss of an eye. I am also mindful that on the factory floor you are surrounded by heavy machinery which could have further added to the possibility of serious injury. I understand that an incident of this type is unprecedented in the company.
I am satisfied that your conduct on 4 July 2018 amounted to Gross Misconduct. I agree with Mr Y and the findings of the investigators in that regard. My decision is based on my own independent assessment of the evidence available as set out by me at the beginning of this letter.
In relation to the imposed sanction of dismissal, I do not believe that it was unnecessarily harsh or disproportionate in this case given that a finding of Gross Misconduct was made and I am of the view that the finding of Gross Misconduct was justified. I am satisfied that such an act of Gross Misconduct did result in a grave breach of discipline to warrant immediate dismissal under your terms and conditions of employment.
In making this decision I have taken into account your 19 years of service with the company and your employment record. I have considered if a sanction less than dismissal could be imposed but regrettably, in my view, it was the appropriate sanction in this case."
It is respectfully submitted that the decision to dismiss was, in all of the circumstances, a reasonable one and that the Complainant's application for relief under Sections 8 of the Unfair Dismissal Act 1977 must therefore fail. The facts and circumstances giving rise to this determination are more specifically set out below.
Following the complaint of assault made by Mr. X, an investigation team was appointed and they conducted a complete investigation interviewing all witnesses, taking photographs of the items involved, sketches of the location, examining the items involved and six statements from relevant staff. It is apparent from the statements in question that a heated exchange took place between the Complainant and Mr. X. The Complainant states that Mr. X struck him repeatedly over the head with a sheet of cardboard. This allegation is denied by Mr. X. The Incident in question took place while the Complainant was working at a location known as the "rotacut", during the course of which the Complainant was using an iron bar I ruler.
No disciplinary findings have yet been made against Mr. X as a result of the incident on the 04 July 2018 as he remains absent from work on medical grounds.
As a result of the investigation report, the Respondent's General Manager convened a disciplinary meeting on August 20th, 2018 with respect to the Complainant. At that meeting, the Complainant acknowledged receipt of the investigation report. At the conclusion of the meeting a disciplinary meeting was proposed to take place on 24 August 2018. On 22 August 2018, the Complainant's SIPTU representative made a number of observations on behalf of his client. On the same date, the General Manager responded by email in which he confirmed, inter alia, that the meeting provisionally set for 24 August 2018 would be postponed at the Representatives request. On 29 August 2018, The General Manager wrote to the Complainant's SIPTU representative providing responses to the queries that had been raised by Mr Hardy in connection with the investigation report and a follow up disciplinary meeting was then scheduled to take place on 31 August 2018. At the meeting of 31 August 2018, The General Manager delivered a reasoned decision in relation to the disciplinary complaint made against the Complainant.As appears from that decision, The General Manager concluded that: "Unfortunately, it is my belief that the serious nature of this striking offence causing bodily injury is too serious to warrant a lesser sanction than dismissal. Accordingly, you are hereby notified that (The Respondent) is terminating your employment immediately. You will receive 8 weeks' pay in lieu of notice as per section 10 of your Terms and Conditions of Employment plus any payment for holidays accrued. Your P45 will follow to your home address. With regard to an appeal against my decision I wish to confirm that you have a right to appeal my decision to the HR Manager Ireland. “You have 7 days from today to make that appeal in writing…”.
By letter dated 3 September 2018, the Complainant's representative submitted an appeal on his behalf. An appeal hearing was then convened, which took place on 12 September 2018. Having considered all of the information made available, the HR Manager Ireland provided a detailed written decision dated 9 October 2018, in which she rejected the Complainant's appeal and upheld the decision to dismiss. In arriving at her decision, the HR Manager Ireland had regard, inter alia, to a report from the Company doctor dated 19 September 2018. The report states, inter alia, as follows: “Mr. X was assaulted at work on 4 July 2018 by another employee. He reported the assault immediately to his supervisor and was brought to Galway Primary Care in Doughiska where he attended me for medical treatment immediately after the assault. Mr X was in attendance with the shop steward from (the Respondent). Mr. X was at work when he was struck on the right lateral nasal fold by a fellow employee with a metal bar which the fellow employee had been using on the rota cut machine at work at approximately 11.15 on 4 July 2018. The laceration was bifurcated. 1Omm and 7mm long and 1mm wide. The laceration was approximately 1mm deep. He had blood on his face and was feeling weak and drowsy with the sudden unexpected impact of the injury. A tetanus injection was given into his left deltoid IM by the nurse. He was treated with Augmentin and Nurofen tablets. He was advised regarding possible scar formation as well as possible signs of infection and required 3 steri-stips to the wound. He told me that he felt traumatized by the incident and needed to be booked off for a few days. he was advised to attend the surgery for review in 5 days."
In these proceedings, the Claimant claims that he was unfairly dismissed by the Respondent. The Respondent denies the claim and asserts that there were substantial grounds justifying the termination of the Claimant's contract of employment. The Respondent further asserts that the dismissal was reasonable in all the circumstances. The Respondent submits that the totality of the case apparently being made by the Claimant's solicitor amounts to nothing more than an attempt to re-run the disciplinary process. The Respondent submits that it cannot seriously be suggested that the sanction of dismissal, in all of the circumstances, was outside of the "band of reasonable responses" to the Claimant's conduct.
The Respondent notes that it is not the role of the Adjudication Officer to substitute his/her views for that of the employer but rather to establish whether or not the decision to dismiss within the "band of reasonable responses" available to an employer finding itself in the position of the Respondent. The "band of reasonable responses" test was developed by the English Courts in response to a tendency by Industrial Tribunals to deal with cases on the basis that there was only one objectively fair and reasonable decision that could have been reached and that, if the decision taken by the employer did not agree with the decision that would have been taken by the Tribunal applying the "reasonable employer test", there was an unfair dismissal. In those circumstances the Industrial Tribunal tended to substitute their view for that of the employer.
The flaws in this approach were confirmed by the Court of Appeal in Foley v Post Office
 ICR 1283. As stated by Mummery L.J. (at p. 1295): "This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer's decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response."
This principle was elaborated upon by the same Judge in the decision of the Court of Appeal in Anglian Home Improvements Limited v Kelly  ICR 242: "The first criticism is that the employment tribunal did not correctly direct itself in law to the appropriate range of reasonable responses test. The test has been well established since the early days of unfair dismissal claims. It is still impossible to improve on the passage from the judgement of Lord Denning MR in British Leyland UK Ltd v Swift 1RLR 91, 93 para 11 cited by Mr. Laddie. The test laid down there was: "The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.”
Years later, the same test was confirmed by this court in Foley v Post Office  ICR 1283.was cited with approval by McGovern J. of the Irish High Court in the context of a wrongful dismissal claim in Doyle v Asilo Commercial Limited  IEHC 445:"It is not the function of the courts to substitute itself for the employer and to make its own decision on the merits of the employer's decision to dismiss. As Mummery LJ stated in Foley v The Post Office /CR 1283 at page 1295:"The employer, not the Tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”
The application of the "band of reasonable responses" authorities in the context of unfair dismissal was confirmed by the decision of Noonan J. in the High Court case of Governor and Company of the Bank of Ireland v Reilly  26 ELR 229.
The interaction between the "band of reasonable responses" and procedural issues was analysed by Browne-Wilkinson J. in Iceland Frozen Foods v Jones  1 ICR 17:
"Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Act of 1978 is as follows: (1) the starting point should always be the words of section 57(3) themselves; (2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstance of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.
Reverting now to the facts of this case, it is suggested that notwithstanding the misdirection, we can uphold the decision of the industrial tribunal on the ground that on any footing it was manifestly unreasonable for the employers to dismiss in the circumstances of this case. The industrial tribunal obviously regarded the employee's faults as minor ones. We cannot accede to the view that notwithstanding the misdirection we can substitute our own decision in this case. Take, for example, the failure to lock the office and to set the alarm. The industrial tribunal took the view that the offence was comparatively trivial; it does not necessarily follow that all reasonable employers would share their view on the matter. It may well be that the misdirection on this point is fundamental to the decision of the case. We do not know enough of the circumstances of the employer's business to decide whether the importance which they obviously attached to the breach of security was such that a reasonable employer might take the view that the risk which security was too great to allow the risk to continue. We express no view to the point one way of the other. We simply cannot decide the matter ourselves on the material we have before us.
As to the alternative ground relied on by the industrial tribunal, namely, procedural unfairness, as we have said we do not think it the correct approach to deal separately with the reasonableness of the substantive decision to dismiss, and the reasonableness of the procedure adopted. The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances."
In J Sainsbury pic v Hitt  ICR 111 the United Kingdom Court of Appeal also approved of this particular approach in the context of dismissal for misconduct. In that case, the Court of Appeal held that the Employment Tribunal had incorrectly substituted its own opinion as to what was a reasonable or adequate investigation, instead of applying the objective standard of the reasonable employer as to what was a reasonable investigation in the circumstances. The Court held that the range of reasonable responses test applied not only to the question of whether or not the suspected misconduct may have taken place but also to the reasonableness of the decision to dismiss and to the reasonableness of the investigation.
In terms of the significance of any "procedural issues", the Respondent relies on the test identified by Laffey J. in the High Court case of Shortt v Royal Liver Assurance Ltd  IEHC 332 that; "the authorities ... make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee's employment and the circumstances surrounding the disciplinary action (per Barrington J. in Mooney vAn Post  4 I.R. 288 at p. 298). The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result (per Hamilton C.J. in Gallagher v The Revenue Commissioners (No. 2)  11.R. 55 at p. 76)."
The Respondent firstly notes that the requirements of fair procedures vary from case to case; there is no set formula that can be followed in each and every case. Instead, general principles have been identified over time, by reference to specific issues that arise on a case by case basis. Where it is suggested that an individual has been deprived of fair procedures, the key criterion for consideration is whether or not the procedural deficit exposed the individual to the risk of an unfair hearing or an unfair result. In Shortt, the procedural deficit in issue was the fact that the employee had been deprived of the opportunity to cross-examine his accuser (in that case, his personal assistant). The Court noted that;
"... in this case there was a large measure of consistency between the basic facts as asserted by the personal assistant and the plaintiff's account of what happened ... There was a conflict as to the demeanour of the plaintiff towards the personal assistant. The essential question is whether, given the refusal of the personal assistant to submit to being questioned at a disciplinary hearing by or on behalf of the plaintiff, the plaintiff was likely to be exposed to the risk of an unfair hearing or an unfair result.
The type of disciplinary process which was being implemented ... does not lend itself to the application of the principles of natural justice in the manner in which they would be applied if the plaintiff had been entitled to a hearing by an impartial tribunal, which was not the case.
On the specific arguments advanced by the plaintiff in this case, in my view, the plaintiff has not established that he was not afforded fair procedures by reason of the fact that there was no opportunity for him or his representative to question the personal assistant. The factual dispute which the investigation identified, in my view, did not indicate that it was necessary in the interest of fairness to afford such opportunity."
The Court concluded that; "Taking an overview of the matter, I do not think that the process involved in the disciplinary procedure was unfair, nor was it implemented in an unfair manner. Viewing the process as a whole, while not perfect, in my view it was not conducted in breach of the plaintiff's rights”
Applying the legal test described above, it is respectfully submitted that there is no basis upon which to uphold the Complainant's claim under the Unfair Dismissals Act. As stated in the Respondent's solicitors' letter of 13 November 2018 “The Claimant was dismissed following a fair and thorough process. The Respondent conducted an investigation, disciplinary hearing and an appeal hearing which the Claimant attended and was represented by his SIPTU representative throughout. At all times during the process, the Claimant was given the opportunity to speak and put questions to the various witnesses, the investigator, the disciplinary officer and the appeal officer. His comments and replies to the investigator's findings were considered by the Respondent, as was the Claimant's years of service and his disciplinary record with the Company, before the decision was taken by the Respondent to terminate his employment. The decision to dismiss was fair, reasonable and proportionate in all of the circumstances. The Respondent denies that the dismissal was unfair, that the investigation was flawed and that a second investigation was carried out by the disciplinary officer without the Claimant's knowledge or involvement."
There is simply no basis for the suggestion that he was denied an opportunity to advance his defence. On the contrary, the Complainant was afforded a full and comprehensive opportunity to raise and address any factual issues which he believed to be relevant to the charge of assault- which charge, it must be remembered, was one which he did not fundamentally deny.
Significant emphasis is also placed in the Complainant's written submission upon the suggestion that the Respondent's decision was legally compromised by the factnoted in the General Manager's determination to the effect that certain witnesses had indicated that Mr. X was being bullied in the workplace.
In doing so, the General Manager was simply recording the information provided during the course of the investigation and in those circumstances where this formed part of the background factual matrix, he was, of course, fully entitled to state that these statements were relevant to the investigation. However, as appears from both the determination of the General Manager, and the HR Manager Ireland on appeal, the decision to dismiss was not, in fact, based upon a finding of bullying. The decision to dismiss was based upon the workplace assault perpetrated upon Mr. X by the Complainant and not otherwise.
The Respondent is respectfully perplexed by the reference to what is referred to as "Schrodinger's Cat". The Complainant's reference to and apparent reliance upon this scientific experiment is fundamentally misplaced, but provides a telling insight into the regrettable approach taken to these proceedings whereby the Complainant seems to focus on irrelevant debating points, rather than the very serious assault which he perpetrated upon Mr. X.
The Complainant states that the Respondent failed to have any or any appropriate regard to the fact that the Complainant was "on his knees" at the time of the incident. The Complainant's written submission elaborates upon this stating that "this would be a bizarre position for a person intent on physical aggression to adopt".
With respect, this submission is misplaced. At no time has the Respondent made a finding that the Complainant adopted a physical position in keeping with that of a person intent on physical aggression. In making this point, the Complainant seeks to rebut an allegation which was, in truth, never made against him. Instead, the essential point upon which reliance is placed is the undisputed fact that the Complainant struck a co-worker in the face with a metal object causing a significant and serious laceration.
Criticism is also advance by the Complainant upon the evidence of Mr Y. Again, it is submitted that this criticism is misplace. As appears from Mr Y’s statement, he states that he was watching the incident closely. Due to the view of the incident which he had, he was unable to see the Complainant striking Mr. X, however, as previously noted this is not a matter which is in controversy or at issue in these proceedings. As against this, Mr Y was, on his evidence, in a good position to see whether- as alleged- Mr. X struck the Complainant with a piece of cardboard. In this regard, Mr Y states as follows:
"I didn't see (Mr. X) strike (the Complainant) and I was watching it closely."
It is respectfully submitted that the Respondent's decision makers were fully entitled to place reliance upon Mr Y’s evidence as an independent observer of the incident who candidly acknowledged the limitations of what he could and could not see. Due to the fact that the Complainant was in a position obscured by the presence of Mr. X, it was not possible to see whether Mr. X was struck on the face, however, Mr Y was in a perfectly good position to see whether Mr. X had struck the
Complainant with a piece of cardboard - something which he confirms did not happen.
The Complainant places reliance on the decision of Eagar J in Lyons v Longford Westmeath Education and Training Board  IEHC 272. It is respectfully submitted that this reliance is misplaced for two reasons. Firstly, there was no failure to permit cross-examination in this case in circumstances where the Complainant did not ask for the facility of cross-examination. As stated in the appeal determination of the Ireland HR Manager, the position was as follows: "I am satisfied that you had sufficient opportunity to raise any issues you had with the evidence provided by Mr X and the statements he provided. During the investigation, you were invited to submit a list of questions you may have of Mr. X to (the Investigator) which he undertook to put to Mr. X. You chose not to put any such questions to the Investigator (and by extension to Mr. X) and confirmed this to me during our meeting. Equally, you were asked to raise any concerns you had with the investigator's findings with the General Manager and I note that he addressed and responded to you with respect to those concerns before he made his decision."
Secondly, any assessment of the significance of the Lyons decision must be viewed in light of the fact that a diametrically opposed view in relation to the issues decided by Mr Justice Eager was arrived at by McDermott J in NM v Limerick & Clare ETB  IEHC 588. Subsequently, the Court of Appeal has stated that the view expressed by Mr Justice McDermott in NM was to be preferred in the recent decision of Irish Rail v McKelvey  IECA 346.
Accordingly, it is submitted that the weight to be attached to the observations in Lyons must be seen in this limited context.
It is submitted that the complaint made at paragraph 3.9 to the effect that The General Manager engaged in an unauthorised "re-investigation" does not withstand factual scrutiny. In fact, The General Manager did not engage in a fresh or further investigation as alleged. On the contrary, arising from the conflict of evidence between the parties in relation to the alleged striking by Mr. X using a piece of cardboard, The General Manager carried out a simulation based on the available witness evidence. The General Manager was fully entitled to do so in order to gain a fuller understanding of the mechanics of the alleged striking and whether such striking would, on balance, have been likely to have been visible to other staff members on the floor had it taken place. Accordingly, the criticism advanced is misplaced and further serves to illustrate a tendency on the part of the Complainant to focus on procedural debating points rather than the essential issues which gave rise to his dismissal.
Finally, the Complainant states that he was not heard at the disciplinary meeting. This complaint is not understood. The Complainant was afforded a full opportunity to speak at the disciplinary hearing, which took place on 20 August 2018, followed by an opportunity to review the investigation report and revert with any relevant comments. The Complainant did so through his SIPTU representative on 22 August 2018 and furthermore, the Complainant confirmed during the course of the appeal hearing before the Ireland HR Manager that he did not have any questions to put to Mr. X arising from the preceding investigation or the process conducted by The General Manager.
In all of these circumstances, it is respectfully submitted that the process adopted was one which more than adequately safeguarded the Complainant's procedural entitlements and that the overall purpose and effect of the process adopted was one which could not possibly be described as procedurally unfair.
The Respondent acted fairly and proportionately in arriving at the decision that the assault perpetrated by the Complainant was a very serious one which was not excused by any of the surrounding circumstances relied upon.
Consequently, the Complainant's claim under the Unfair Dismissals Act 1977 must fail.
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.
“6.1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
The Adjudicator has given considerable consideration to both submissions and to the relative merits of both cases put forward on both the substantive and procedural issues involved. On the Respondent side it found itself with an incident of a physical harm being done to Mr. X by the Complainant with an iron ruler. The Adjudicator saw and felt the item in question and it was an iron ruler of some two feet and some considerable weight. In other words, it was no light piece of equipment. Mr. X suffered lacerations to his face and remains on sick leave nearly a year later. The Respondent conducted an investigation and felt the act was one of gross misconduct and it had a duty to keep employees safe at work and the incident was not in keeping with the safety ethos or record of the company over many years.
On the Complainants side he states he was not the aggressor in this case, however this is unproven in the investigation. He had a long service of 19 years with no disciplinary actions. He stated he responded to an act by another employee to “defend” or beat off the other employee who was hitting him with the Cardboard box, which again the Adjudicator saw and picked up the cardboard box and it was a side of a large cardboard box approximately 4 feet by 2 feet but not as physically dangerous as the ruler/iron bar. The Adjudicator also notes that the Complainant states he was not given the opportunity to cross examine Mr X, however I am not of the view that nothing would have changed in this respect, had this happened, as the vital fact, that the Complainant hit Mr. X with the rules/iron bar was agreed between the parties. I also note that the Complainant or his Representative say they were not allowed to speak at the disciplinary hearing, but the open question is did they ask to speak and be turned down or just choose not to ask any questions. I also note that it appears that the decision to dismiss was made in advance, based on the Investigation report, of the disciplinary hearing with a prepared statement read out to the Complainant. While this may not be good practice the Respondent had its mind pretty much made up to dismiss based on the fact the Complainant had hit Mr. X with the ruler/iron bar.
A number of judgements were considered by the Adjudicator in arriving at my decision.
Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.
Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.
Also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.
In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances. The Complainant stated he was not allowed speak at the Disciplinary hearing but in evidence the Respondent dealt with this point and stated the Complainant was not denied the opportunity to speak but choose not to do so and he was represented at all stages of the disciplinary and appeal process.
The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her ”submissions listened to and evaluated”. The Complainant had representation at all stages and the conduct of the “second investigation” was not an investigation per se but a detailed examination of the facts as presented to the Decision Makers by the Investigators in this case to ensure objectivity in the decision making process. No claim of bias by the Internal Investigators was put forward by the Complainant. The issues were subject to a detailed investigation. The Adjudicator finds it reasonable, therefore, for the Respondent to claim that they had taken reasonable steps to ensure fairness of procedures and a high level of objectivity in decision making. The Decision to dismiss was taken by the General Manager, after a high degree of analysis, and it must be said, with a consideration of the Plants good safety record in the past of not having incidents of this type. The duty of care to other staff members also seems to have been a reasonable consideration.
With regard to the question of what a reasonable employer would have done in the circumstances, as Lord Denning put it in British Leyland UK Ltd V Swift (1981) “if a reasonable employer might have dismissed him, then the dismissal was fair”. This concept was expanded upon in Abdullah V Tesco Ireland plc (UD1034/2014 in which the EAT stated “What is required of the reasonable employer is to show that s/he had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and the sanction of dismissal as not disproportionate”. In the circumstances of this case who started the incident is in dispute and some of the fairness of the procedures have been questioned by the Complainant and disputed by the Respondent, what is not in dispute is the Complainant hit a fellow employee with a very strong ruler/Iron bar and the Complainant suffered facial injuries, which could have been much worse if he was hit in the eye and remains our of work since the incident. None of the issues raised, or proven, regarding the process are so fundamental as to make the reasonableness of the decision to dismiss unreasonable.
Having considered all the matters relevant to the decision in this case I find that the Respondent had substantial grounds for dismissing the Complainant on the substantive issue of hitting another employee with the ruler/iron bar. I have given great consideration to the issue of whether the decision should be deemed unfair on procedural grounds or not. The procedural grounds are as follows in order of relevance/contribution to the decision of unfair dismissal:
The fact that the Complainant turned up to a disciplinary hearing and was presented with a fait accompli of a prepared decision to dismiss and he was not given any opportunity to present his case in his own way but was just limited to the investigation report. The Respondent denied this was the case and the Complainant was represented at the Hearing.
The Complainant was not the aggressor in this case but possibly responded in an unplanned way to being hit on the head by Mr. X. This issue lies unproven.
The inclusion of the bullying aspect to the investigation without the Complainant been given any sight of a complaint of bullying, if there was one, and not been given the opportunity to respond to that complaint and the fact it was taken into account, in some shape or form, in the decision to dismiss was not fair to the Complainant. The Respondent denied it took any issue of bullying into account and it was only mentioned as it was mentioned by staff in the investigation.
The long unblemished service of the Complainant.
In dealing with the issue of “Procedural v Substantive Justice” in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”. This is important in the context of this case.
I also note that the Complainant, due to caring for a parent has not sought to mitigate his loss by applying for other positions. While understanding this situation the Complainant was obliged to try to mitigate his loss which he has not done. The Adjudicator has also given consideration to whether a decision of unfair dismissal was justified in the circumstances of the alleged procedural omissions in this case, considering the remedy of compensation instead of reinstatement, (but an amount appropriate to reflect the gravity of the substantive issue) and concluded that this is not appropriate in the overall circumstances of this case and the Respondent replies to the procedural issues raised by the Complainant.
The core outcome of this incident is that Mr. X ended up with lacerations on his face, photos of which were produced at the Hearing and Mr. X had to attend hospital for treatment to his face. Mr. X has not yet returned to work since the incident. The Respondent has a duty of care and safety to staff and the Complainants action of responding (or initiating) to Mr. X by hitting him on the face with a ruler/iron bar was disproportionate to being hit by Mr. X with a cardboard box, if at all. While there were some procedural issues in this case, which in circumstances less extreme than the substantive issue involved in this case, could justify a decision of unfair dismissal, the gravity of the Complainants action to hit Mr. X in the face which resulted in him having cuts to his face and nose and remains out of work a year after the incident, outweighs any mitigating procedural omissions and I have concluded the Respondent acted reasonably, within the band of reasonable responses, in dismissing the Complainant.
The claim for unfair dismissal fails accordingly.
Workplace Relations Commission Adjudication Officer: Peter O'Brien