ADJUDICATION OFFICER DECISION
Complaint Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
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 an employment agency from 18th October 2016 to 25th April 2018 and was placed with the Respondent initially as a general operative and then from 20th March 2018 as a bus driver.
Section 13 the Unfair Dismissals (Amendment) Act 1993 provides that the entity which hires an individual from an employment agency is deemed to be the employer for the purposes of the Unfair Dismissals Acts. Accordingly, the hirer is the correct Respondent for the purpose of this referral.
Summary of Complainant’s Case:
The Complainant submits that he was dismissed by the Respondent. The Complainant submits that the employment agency did not him offer alternative employment.
The Complainant submits:
Prior to his dismissal, the Complainant had worked with the Respondent for eighteen months. During that time he had never missed a day, had never been late and was a very responsible employee who completed all the tasks which were assigned to him. In 2017 he was awarded Employee of the Year.
At 9am on Wednesday 25th April 2018 the Complaint went to park his bus so that he could go on his break. He was always careful to park his bus in such a way that it did not disrupt other traffic. On the morning in question, the Complainant was not happy with the position in which he had parked his bus and signalled to the second bus driver to move his bus so that the Complainant could park his bus in a better position. The second bus driver responded by verbally abusing the Complainant using profane language.
The Complaint then entered the second bus driver’s vehicle and asked him why he had used such words towards him. The second bus driver was approximately half his age and the Complainant asked him to respect his age.
In response to a direct question from the Respondent, the Complainant denied grabbing the second bus driver by the throat when the Complainant entered his bus and said that it was obvious that everybody was against him.
The Traffic Marshall, OM, who was about 60/70 metres from the bus saw them arguing and asked what was going on. The Complainant replied that everything was fine.
The Supervisor, AP, asked what was going on. The Complainant tried to explain to him but AP was not interested.
Five minutes later, the Complainant was asked to go to a meeting with another supervisor, RG and one of the principal contractor’s managers, JC. During that meeting, the Complainant heard of the accusation from OM that he was arguing with the other driver in the bus. JC asked what had happened and the Complainant explained that the other bus driver had called him a “f***ing old man”. He asked JC several times how the young guy (the other bus driver) could say such words to him. The Complainant said that he had simply parked his bus and didn’t deserve to be spoken to in such a way. The Complainant then left the room.
He was called back in 10 minutes later. JC told him to calm down. The Complainant accepted that he was nervous and angry because no one had ever spoken to him like that before. JC then said that he was suspended for two days.
When the Complainant got home he phoned PG in the employment agency and asked to meet him there so that he could explain what had happened. He met PG. PG that he would talk to the Complainant the next day (Thursday 26th April 2018) about his future.
The next day, the Complainant phoned PG but PG didn’t answer his call. He phoned PG again the following Monday (30th April 2018) but PG didn’t answer.
The Complainant then went to the site but his badge was blocked. He tried again to contact RG and PG but no one answered. At the end of the week he went to the site again and tried to contact RG and PG again but no one answered.
A week later her he sent messages asking about the future but he did not get any responses.
The Complainant contends that he was denied fair procedures and natural justice.
Mitigation of loss
The Complainant is seeking reinstatement.
Between the date of his dismissal and the 25th of August, the Complainant earned €1,070.16 working part-time with an employment agency. The Complainant obtained fulltime employment on 25th August 2018 at a higher rate than he had received while he had been in the employment of the Respondent.
Summary of Respondent’s Case:
The Respondent does not accept that this is an unfair dismissal as the Complaint was offered, and refused, alternative employment. The Respondent submits that the Complainant was never issued with a P45.
The Respondent submits:
The Complainant worked as a general operative and then as a bus driver on a site for over 12 months. As with all general operatives, the Complainant was engaged via an employment agency.
On the 25th April 2018 Supervisor, RG, reported an incident to the Project Manager, PB. An incident had taken place between the Complainant and another bus driver. RG reported that he had been told that the Complainant had entered the bus driven by the other bus driver and that the Complainant had assaulted the other bus driver by grabbing him by the throat. One of the principal contractor’s managers, JC, confirmed that he had spoken to the other bus driver who confirmed that the Complainant had grabbed him by the throat alleging that he disrespected him.
RG and JC then proceeded to the main accommodation looking for the Complainant who was on his break. They met the Complainant in the main accommodation block and they asked him to accompany them to a meeting room. In the meeting room, the Complainant was asked whether or not he had approached the bus driver and put his hand on his throat. The Complainant confirmed unequivocally and without any apology that he had and stated that the bus driver had disrespected him. At that point the Complainant raised his fist and said "I will get him after 6 o’clock".
JC then stated that this was unacceptable behaviour and told the Complainant to go home. It was clearly a health and safety matter and the Complainant could not be allowed to remain on site when he admitted assaulting another person and then used a threatening gesture confirming that he would be going after him again later. As the main contractor would no longer allow the Complainant to remain on site, his access card was cancelled.
The main contractor on the site is ultimately in charge of health and safety issues on the site and if they have health and safety concerns regarding any general operative or other person placed on site the Respondent must take their concerns on board.
RG was informed by JC that the Complainant was no longer allowed on site. RG contacted PB, the Project Manager as to what had transpired and asked him to inform the employment agency and explain that the Complainant was no longer allowed on site.
It is submitted that it is clear that the Complainant was guilty of gross misconduct by assaulting the bus driver. He admitted it in the presence of two people and had the clear intention of trying to repeat the assault later in the day.
Without prejudice to the fact that the Complainant contributed 100% to the difficulties he encountered, it is submitted that the Complainant was offered alternative work and chose not to accept it and therefore this is a not a case of unfair dismissal but an effective resignation.
Evidence of Traffic Marshall, OM
On 25th April 2018, OM saw the Complainant pull in behind the other bus driver. He saw the Complainant grab the other driver by the throat and punch him.
OM was 15 – 18 feet from the bus and was clear about what he saw.
Evidence of Supervisor, RG
On the morning of the 25h April 2018 he was walking back to the main accommodation block from site with JC. As he approached the Bus stop area OM called him over to where he was standing by one of the buses.
He informed him that the Complainant had entered the bus driven by the other bus driver and that the Complainant had assaulted the other bus driver by grabbing him by the throat. JC spoke to the other bus driver who confirmed that the Complainant had grabbed him by the throat saying that the other bus driver had disrespected him.
RG and JC proceeded to the main accommodation looking for the Complainant who not on his bus as he was on his break. They met the Complainant in the main accommodation block and JC asked him to accompany them to an empty meeting room.
JC then proceeded to question the Complainant about the alleged incident. He asked him if he had approached the other bus driver and put his hand on his throat. He replied “yes, because he disrespected me”. At this point the Complainant raised his fist and said “I will get him after 6 o'clock” by which he meant the other bus driver. RG didn’t feel that the Complainant was fit to remain on the site.
JC then said that this was unacceptable behaviour and told the Complainant to go home and to contact the employment agency about the incident. JC then informed RG that the Complainant was no longer permitted on site and cancelled his access card.
RG then went upstairs to the office and Informed PB as to what had taken place. PB told him that he would call the employment agency and explain the situation to them.
Later that day, PB confirmed to him that he had spoken to the employment agency about the matter and that they would speak to the Complainant.
Evidence of Supervisor/Interpreter, AP
AP attended the meeting on 25th April 2018 between JC, RG and the Complainant as an interpreter for the Complainant. He heard the Complainant admit that he had put his hand around the other driver’s throat. He also heard the Complainant say that he would catch up with the other driver after 6 o’clock.
Evidence of the Project Manager, PB
On the morning of the 25th April 2018 RG reported to him that the Complainant had allegedly assaulted a fellow bus driver by grabbing him by the throat and choking him because the other bus driver was being disrespectful to him.
He was told that the Complainant was taken to a meeting room to be spoken to about the incident by JC and RG. He was told that when asked by JC did he put his hand on the other bus driver he replied: “Yes, I did. He was disrespectful to me”.
He was told that the Complainant became aggressive and that he allegedly raised his fists and said “Iwill get him (the other bus driver) tonight at 6 o'clock”.
After RG’s brief to him, he called the employment agency and informed them of the incident and the facts surrounding the Complainant’s removal from site and asked them to make contact with the Complainant.
He was concerned about the Complainant’s words about getting the other driver after 6 o’clock and considered escorting the other driver off the site.
The Respondent relied on the Supreme Court case Carney v Balkan Tours Ltd in support of their case.
Findings and Conclusions:
Based on the evidence adduced at the hearing, I find that the Complainant was dismissed by the Respondent and that he was not offered alternative employment by the employment agency.
The matter for me to decide, therefore, is whether the dismissal of the Complainant by the Respondent was unfair.
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.
I note the differing version of events which have been put forward by the Complainant and the Respondent.
The Complainant disputes that he physically assaulted the other bus driver and asserts that he simply remonstrated with him after the other bus driver had verbally abused him.
The Respondent, on the other hand, contends that the Complainant put his hands around the other bus driver’s throat. The Respondent maintains that the Complainant further compounded his wrongdoing by threatening “to get” his colleague after 6 o’clock.
In light of the previous good conduct of the Complainant, I am of the view that the Respondent would not have dismissed the Complainant solely as a result of an exchange of words with the other bus driver no matter how inappropriate.
I do accept, however, that notwithstanding the Complainant’s prior exemplary record, the Respondent would have dismissed him for engaging in a physical altercation. On the balance of probabilities, therefore, I prefer the Respondent’s version of events leading up to the Complainant’s dismissal.
The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.
The Code of Practice emphasises that good practice entails a number of stages in the discipline and grievance process as follows:
· That employee grievances are fairly examined and processed
· That details of any allegations or complaints are put to the employee concerned
· That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
· That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
· That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.
I find that the Respondent did not adhere to any of the procedures provided for in the Code of Practice and, therefore, that procedurally the dismissal was wholly flawed.
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 that no 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 the physical altercation that occurred on the 25th April 2018 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 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.
Contribution to Dismissal
Taking full account of the evidence adduced and the written submissions, I find that the Complainant has to bear a significant level of responsibility for the incident which led to his 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.
Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I find that the dismissal of the Complainant was substantively fair but procedurally unfair and I award the Complainant €1,000 in compensation.
Dated: 16th May 2019
Workplace Relations Commission Adjudication Officer:
Dismissal – substantively fair, procedurally unfair. Complainant wholly responsible.