ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017379
A Warehouse Loading Bay Operative
A Distribution Company
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: 05/02/2019
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance with 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).
Summary of Respondent’s Case:
It is the respondent’s case that the sanction of dismissal was appropriate and proportionate and that the decision to dismiss was only taken following a thorough investigation and fair application of the disciplinary process.
The respondent submits that, on Friday the 27th of April 2018, the complainant was working his regular 17.00 to 01.00 shift reporting to Mr A who was the most senior person on duty that evening. Mr A asked the complainant and other LBOs for assistance to offload air freight boxes in the warehouse, this is referred to as “baying off the freight”. This generally requires the LBO to go through an RPP process which is a scanning system. The respondent had recently varied its requirements of the RPP process and had advised employees that certain boxes did not require the RPP process anymore. Those certain boxes could just go straight onto the conveyor belt and onto the designated area.
Mr A have not been informed of the variation to the RPP process. At approximately 20:30 when Mr A saw the complainant and other LBOs moving the boxes without going through the RPP scanning process, he asked the LBOs why they had not done so. The complainant advised Mr A that it was not required anymore. Mr A questioned the complainant and a disagreement ensued. The complainant threw the freight box he was holding at Mr A. Mr A walked away from the complainant, but the complainant followed him down the aisle and an aggressive exchange continued. The incident was recorded on CCTV.
Mr A reported the incident to his manager, Mr D and the operations director and Mr B, the depot manager, by email on the night of the incident. Mr A reported that the complainant was aggressive and cursing and that he had the feeling that it could escalate and further that he felt very threatened.
Upon their return to work on Monday the 30th of April the operations manager immediately referred the matter for investigation by Mr B, the depot manager with oversight by HR.
Mr B met with Mr A to confirm his understanding of the complaint made and reviewed the incident on CCTV. Having considered the nature of the allegations against the complainant, Mr B decided it was prudent to suspend the complainant on full pay pending an investigation.
When the complainant attended for work shortly before 5 p.m. on Monday the 30th of April, he was asked to attend the meeting with Mr B, Ms C, HR administrator also attended the meeting. Mr B advised the complainant that an incident on the 27th of April last had been reported and it was a serious matter and that the complainant was being suspended on full pay pending the outcome of the investigation. The complainant was advised that the meeting was not a disciplinary meeting and only a meeting to advise him that an investigation would be undertaken.
Following the meeting Ms C, the HR administrator, issued an email and letter to the complainant to confirm the content of their meeting.
Mr B undertook an investigation and to that end, met with witnesses to the incident, Mr A and the complainant. The complainant was represented during the investigation by SIPTU. Ms C attended as notetaker at all investigation meetings.
During the investigation, Mr B was notified of a second separate incident involving the complainant and Mr A, 10 days previously, the 17th of April 2018. The two alleged incidents were investigated. At the conclusion of the investigation the complainant was invited to a disciplinary hearing to consider the alleged incidents of the 17th and 27th of April 2018, by letter dated 31st of May 2018.
The complainant was forewarned in the letter of the 31st of May 2018 that “all disciplinary matters are considered serious and that given the nature of the allegations, this may constitute gross misconduct, which could result in your dismissal from the company.”
The complainant was provided with a copy of all the relevant evidence including a copy of the investigation report, minutes of the investigation meetings, witness statements and a copy of the disciplinary procedure. In addition, the complainant was advised that the evidence to be considered at the disciplinary hearing what also include the CCTV footage which was reviewed with the complainant during the investigation meetings. The complainant was invited to make submissions. The complainant was advised of his right to be accompanied at the disciplinary hearing.
The disciplinary hearing took place on the 22nd of June 2018. The complainant was accompanied at the hearing by his SIPTU representative. Mr D, depot manager chaired the disciplinary hearing. Mr B attended as the investigator. Ms C attended as notetaker and Mr E, HR business partner, attended the hearing by conference call, to answer any HR questions regarding the disciplinary process.
The purpose of the disciplinary hearing was to consider the two allegations against the complainant, namely that on the 17th and 27th of April 2018, the complainant displayed “violence, actual or threatened against another person or employee; threatening and aggressive behaviour against another person or employee; harassment or intimidation towards another person or employee; and wilful neglect of or damage to company, customer or employee property.
At the conclusion of the disciplinary hearing, Mr D advised that he would consider all the evidence and submissions provided to him in the course of the hearing and would issue his determination in due course.
Mr D issued his determination by letter dated 3rd of July 2018 in which he upheld the allegations against the complainant; found them to be gross misconduct and summarily dismissed the complainant. The complainant’s employment was terminated on the 6th of July 2018. The complainant was advised of his right to appeal.
The decision to dismiss the complainant was subject to two appeal hearings, the first which took place on the 20th of July 2018 and 2nd which took place on the 6th of September 2018. At the second appeal hearing the complainant was represented by his full-time Union official. However, both appeals failed as it was found that the sanction of dismissal was deemed to be proportionate and the decisions were upheld.
In summary, the respondent submits that the complainant was afforded due process and in particular a thorough investigation and disciplinary procedure including two appeal hearings. The disciplinary incident was found to be very serious warranting a categorisation of gross misconduct and the complainant was lawfully summarily dismissed.
In answers to questions, the respondent denied that the conversation that took place between the complainant and Mr A could be characterised as normal banter. Regarding CCTV, the respondent stated that they are required under aviation security protocols and although there is no reference to the use of CCTV in the disciplinary procedure there are signs up in the warehouse drawing staffs’ attention to them.
Summary of Complainant’s Case:
The complainant’s submission does not differ greatly from that of the respondent, as outlined above. However, the complainant submits that there were failings in the investigation and disciplinary processes sufficient to render the processes tainted and that the decision to dismiss the complainant was disproportionate in the circumstances.
The complainant submits that the charges made against him were taken out of context in that similar verbal exchanges with his supervisor, Mr A, were commonplace and as such could not amount to misconduct or gross misconduct.
The complainant never gave consent to be monitored by CCTV for disciplinary purposes, nor does the disciplinary process allow for such.
The complainant did not intend for the package he threw to hit Mr A and indeed there was no conclusive evidence to show that the package did actually make contact with Mr A.
The complainant submits that the events of 27th April 2018, resulted from a miscommunication between him and his supervisors and when he was accused of inactivity by Mr A he responded out of frustration.
The complainant strongly refuted the description of his hand gestures as “uppercuts” as described by the investigating officer. He contends that they were dismissing motions, made during a verbal agreement.
In addition, the complainant submits that the investigation and disciplinary processes were flawed for several reasons;
There were no terms of Reference for the investigation.
There is no reference in the disciplinary procedure to the use of CCTV for disciplinary purposes.
The Complainant was never made aware of a second allegation being investigated prior to his investigation meeting.
The investigating officer was not impartial as the complainant in a grievance against him in the past.
The investigation officer had sent the letter inviting the complainant to the disciplinary hearing.
The appeal officer was the person who instructed the team on 27th April 2019 and so was not entirely removed from the process.
In conclusion, the complainant submits that the process that lead to his dismissal was unfair and although he admits he should not have dropped the box, he had 12 years’ service with no disciplinary warnings. The complainant believes that he was dismissed in part because he speaks up to management, such as his successful grievance in 2010 in which the investigating officer and another supervisor were required to apologise to the complainant.
All in all, the decision to dismiss was disproportionate, given his long, clean service record with the complainant. He was willing to learn from his mistake. He was never given a copy of the CCTV policy and was unaware he was under surveillance.
Findings and Conclusions:
Findings and conclusions
S6(4)(a) of the Act states 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 the conduct of the employee.
In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.
I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.
In deciding on the fairness or otherwise of this dismissal a number of questions need to be answered.
1. Were there substantial grounds to justify the dismissal?
I find there were. Violence or the threat of violence is not acceptable in the workplace. It is an employer’s responsibility to ensure that his or her employment is a safe environment for all employees, regardless of their rank. In this instance I find that the complainant, as he said in his own words, “went to far”.
2. Was the sanction of dismissal proportionate?
In the circumstances, I find it was proportionate. Violence or the threat of violence cannot be tolerated in the workplace. The respondent did consider lesser sanctions but decided that the gravity of this matter justified dismissal. I find that decision falls within the range of reasonableness expected of an employer, particularly when the respondent was of the belief that the complainant had not shown any remorse following the incident.
3. Were the procedures used in the disciplinary process fair?
An employer is bound to show not only had he or she substantial grounds justifying dismissal but also that he or she followed fair and proper procedures before dismissal. In relation to procedures, a number of questions need to be answered.
(i) Did the Respondent adhere to its Disciplinary Policy and was that Policy fair?
From the evidence adduced it is my belief that the respondent did follow the company Disciplinary Policy and having reviewed that policy I believe it to be fair.
The complainant has raised the issue of the use of CCTV during the investigation. CCTV must comply with the requirements of the Data Protection Acts 1988 and 2003 and in particular the principles of transparency and proportionality. In this case the complainant was well aware of the use of CCTV and the its use was only raised as an issue after the decision to dismiss had been taken; I find no procedural unfairness with the use of same. In any event, the adverse findings against the complainant were not dependent on the CCTV evidence alone.
(ii) Was the Complainant given adequate details of the allegations so as to be in a position to adequately address them?
The complainant was made aware of the allegations against him as these were outlined to him both verbally and in writing.
(iii) Was the complainant afforded an opportunity to defend himself and have his arguments and submissions listened to and evaluated by the respondent in relation to the threat to his employment?
The complainant was given opportunity to answer and make submissions on the allegations made. He was represented throughout the process by his union.
(iv) Was the Complainant informed of his right to appeal the decision to dismiss?
Yes he was, and he did appeal twice the decision but the decision to dismiss was upheld on both appeals.
Having considered the matter carefully I find that this was not an unfair dismissal.
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 find the complaint to be unfounded.
Dated: 30th May 2019
Workplace Relations Commission Adjudication Officer: Roger McGrath
Violence, threat of violence, CCTV,