SMURFIT KAPPA IRELAND LTD
1.Appeal of Adjudication Officer Decision NoS: ADJ-00017530 CA-00022675-001
This is an appeal by Mr. Folan, ‘the Complainant’, of a decision by an Adjudication Officer, ‘AO’ that he had not been unfairly dismissed by Smurfit Kappa Ireland Ltd, ‘the Respondent’, contrary to the terms of the Unfair Dismissals Acts 1977-2015, ‘the Acts’.
The Complainant was employed by the Respondent from November 1999 to August 2018 as a General Operative. He was paid €560 per week.
The Complainant was dismissed for ‘gross misconduct’ following an incident with a colleague.
He lodged a complaint under the Acts with the Workplace Relations Commission, ‘WRC’.
An AO found that the case was unfounded.
The Complainant appealed this Decision to this Court.
The Court declined a request for anonymity from the Complainant’s representative as no special circumstances were put forward that would, in the view of the Court, warrant the exercise of its discretion under s.44 of the Workplace Relations Act 2015. The Court did not accept that the grounds put forward, that an alleged assault could have negative consequences for the Complainant, met the requirements of that section. The Court noted that the 2015 Act intends that matters of employment law before the Court should ordinarily take place in public. The consequences for an individual who takes a case under the Acts, having been dismissed for alleged gross misconduct, cannot, of themselves, be grounds for departing from the general intention that such cases be held in public unless special circumstances are established.
Summary of Respondent arguments.
On 4 July 2018, a heated exchange took place between the Complainant and a colleague, Mr. Gabriel Fallon. It is not in dispute that the Complainant struck Mr. Fallon in the face using an iron bar, described by the Complainant as an iron ruler. This is a weighty instrument. As a result of the assault, the victim suffered a significant facial laceration and was certified as unfit for work.
The Complainant’s explanation for the assault is that he was struck by Mr. Fallon with a sheet of cardboard.
None of the procedural issues identified by the Complainant detract from the undisputed fact that he hit a colleague in the face with a metal bar and it is not argued on behalf of the Complainant that a different procedure would have changed the outcome.
Even if the narrative of the Complainant that he was struck with a piece of cardboard was accepted, which it is not, it could not justify the serious assault that took place. In fact it was determined in an exhaustive process that Mr. Fallon had not struck the Complainant with a piece of cardboard.
An investigation was carried out. It was conducted carefully by two managers. The Complainant was afforded a reasonable opportunity to advance his defence. The Complainant was represented throughout. At a meeting on 13 July 2018, the Complainant was asked to give his account of events.
No issue was raised by the Complainant or his representative regarding the process.
On 24 July 2018, and 26 July 2018 the Complainant was provided with the notes of interviews of all relevant employees.
The investigation report concluded that the Complainant was guilty of gross misconduct.
Following several attempts to arrange a suitable date, a disciplinary meeting took place with Mr. Winston Depinna, General Manager, the Complainant and his representative on 20 August 2018. The Complainant was afforded every opportunity to speak, followed by an opportunity to revert with relevant comments, which he provided through his SIPTU representative on 22 August 2018.
On 29 August 2018, Mr. Depinna provided responses on the matters raised.
At a further meeting on 31 August 2018, Mr. Depinna delivered a reasoned decision terminating the Complainant’s employment. He was paid the 8 weeks’ notice provided for in his terms and conditions.
On 3 September 2018, an appeal was forwarded for the Complainant.
An appeal hearing was convened for 12 September 2018, conducted by Ms. Colette Norman, HR Manager, Smurfit Kappa Ireland..
Having considered all relevant information, Ms. Norman provided a detailed written decision dated 9 October 2018, in which she upheld the decision to dismiss.
Ms. Norman referred to the assault, her belief that there was an excessive use of force, that this was an act of gross misconduct and stated that she did not believe that the sanction was disproportionate. She took into account the Complainant’s record and considered if a lesser sanction could be applied but concluded that the sanction was appropriate.
By reference to s. 6(1) of the Acts, there were substantial grounds to justify the dismissal. It cannot be seriously suggested that the sanction was outside the band of reasonable responses.
The Complainant is inviting the Court to re-run the investigation and to substitute its view for that of the Respondent. This is contrary to case law, seeinter alia; British Leyland UK Ltd v. Swift (1981) IRLR 91; Foley v Post Office (2000) ICR1283; Anglian Home Improvements Limited v. Kelly
In the High Court case ofShortt v Royal Liver Assurance ltd. (2008) IEHC332,Laffoy J observed that the important point about procedural fairness is that the decision-maker must not imperil a fair hearing or a fair result. There is no set formula to determine this but a procedure does not have to be perfect, as noted in theShorttcase, provided it is not conducted in breach of rights.
The procedure in this case was fair. There were no complaints from the Complainant’s representative. This is not surprising as the Complainant does not deny striking a colleague with a metal bar causing him injury.
There is no basis for suggesting that the Complainant was prevented from putting forward his defence. He was afforded a full opportunity to do so in respect of a charge that he did not deny.
No weight was placed on allegations that Mr. Fallon was being bullied. It is clear from Mr. Depinna’s decision and the outcome of the appeal given by Ms. Norman that the decision to dismiss was not based on any finding of bullying. It was based upon the assault.
The Respondent never sought to deny that the Complainant was in a crouched position when approached by Mr. Fallon. No finding was made that the Complainant was intent upon physical aggression but it is not disputed that the Complainant, when approached by Mr. Fallon, struck the latter in the face with a weighty metal object.
A witness, Mr. Keelaghan, was in a good place to see events. He did not see Mr. Fallon strike the Complainant. Due to his view, the fact that the complainant was crouched down and the fact that Mr. Fallon was between the witness and the Complainant, he could not have seen the Complainant strike Mr. Fallon and he said so in his evidence but this is not in dispute. He was, however, in a good position to see if Mr. Fallon raised a long piece of cardboard to strike the Complainant and he did not see this happen.
Reliance by the Complainant onLyons v. Longford Westmeath Education and Training Board (2017) IEHC 272is misplaced. There was no failure to permit cross examination. As Ms. Norman noted in her appeal finding, the Complainant declined the opportunity to submit a list of questions to Mr. Fallon and to the lead investigator, Mr. Faherty. Any concerns regarding the investigation were raised with Mr. Depinna, who responded to these.
In any event, a diametrically opposite view to that inLyonswas arrived at inNM v. Limerick and Clare ETB (2017) IEHC 588and this view was preferred inIrish Rail v. McKelvey (2018) IECA346.
It is not true that Mr. Depinna engaged in a re-investigation. Rather, in view of the conflict of evidence, he carried out a simulation to understand what might have happened and what could be seen by staff members. He was entitled to do so.
It is denied that the Complainant was not allowed to speak at the disciplinary hearing. He was afforded a full opportunity to speak. He confirmed to Ms. Norman in the appeal that he had no further questions to put to Mr. Fallon.
Summary of Complainant’s arguments
The Complainant reacted to an unprovoked attack to defend himself while in a vulnerable position. The disciplinary officer did not give him an opportunity to speak and merely read a prepared letter of dismissal.
On 4 July 2018, the Complainant was on his knees at a waste vent when he was approached by an angry Mr. Fallon, who had a large sheet of cardboard on which an image offensive to him had been drawn. Mr. Fallon blamed the Complainant, who denies this. Mr. Fallon hit the Complainant with the cardboard. The Complainant had a ruler in his hand that he was using to clear the vent. He used this to defend himself. Mr. Fallon acknowledged that he threw the cardboard at the Complainant, though he says that this was after he was struck by what he acknowledged to be a metal ruler.
The Complainant was suspended on 7 July 2018, pending an investigation conducted by Mr. Noel Faherty, Operations Manager, and Mr. Jim McHugh, Logistics Manager. The investigation found, relying on evidence from Mr. Eanna Keelaghan that he was ‘watching closely’, that the injury to Mr. Fallon was not occasioned by self-defence. What could it be if the Complainant was, as accepted, kneeling when confronted by an upright, angry colleague?
The Court is asked to note references in the investigation report to the Complainant’s ruler as an iron bar. The report further found, which was not part of its remit, that the Complainant was bullying Mr. Fallon. No such allegation was ever put to him.
Then investigation report was presented to the Complainant by Mr. Depinna on 20 August 2018. The Complainant was invited to review the report and to revert with comments. These were submitted by SIPTU on behalf of the Complainant on 22 August 2018. By reply that day, Mr. Depinna advised that comments regarding the investigation report were to be actioned by Mr. Faherty.
On 29 August 2018, answers were provided by Mr. Depinna in a letter that invited the Complainant to a meeting on 31 August 2018. At this meeting, Mr. Depinna read out a letter of dismissal. At no stage in this meeting was the Complainant given the opportunity to speak.
An appeal was lodged on 3 September 2018. An appeal hearing took place on 12 September 2018. A letter dismissing the appeal was sent on 9 October 2018.
InPottle Pig Farm v Panasov UDD1735, the Labour Court held that failure to investigate properly or to afford a fair opportunity for a defence will take the decision to dismiss outside the range of reasonable responses.
As noted inMedical and Industrial Pipeline Systems Ltd v Dunne UDD 1945,there are certain fundamental principles of fair procedures that cannot be dispensed with.
Mr. Depinna accepted the findings of the investigation and found that comments on the report for the Complainant did not compromise the findings of the report and the finding of Gross Misconduct.
In his letter of dismissal, Mr. Depinna found that the statements by some witnesses that Mr. Fallon was being bullied by the Complainant were ‘relevant to the investigation’ . Therefore, he relied on this finding in coming to his decision. He could have accepted the point made for the Complainant that it was inappropriate for the investigation report to have found the Complainant responsible for bullying Mr. Fallon or simply to declare that this was irrelevant to his decision. He did neither. Accordingly, the decision to dismiss rested on a serious charge that was never put to the Complainant.
Ms. Norman’s appeal finding states that her decision was not based on the secondary finding of bullying. This is diametrically opposed to Mr. Depinna’s finding and is sufficient basis for the appeal to have succeeded.
When it was put to Mr. Depinna on 22 August 2018 that because the investigation had found that Mr. Fallon had approached the Complainant with a ‘head of steam’ and had thrown cardboard at the Complainant, the inference that should have been drawn was that it was him who was the instigator of the confrontation, Mr. Depinna had said that this was a separate issue to be addressed with Mr. Fallon. It was unreasonable of him not to address this point. Ms. Norman noted that Mr. Depinna was aware of and took account of Mr. Fallon’s actions. This contradicts Mr. Depinna’s view that this was a separate issue.
The Complainant was on his knees when Mr. Fallon leaned over him and he had a well founded fear of injury. Mr. Depinna’s response, which adopts Mr. Faherty’s view, that the investigation report does not reference intent on physical aggression is an evasion. The Complainant was dismissed for an assault but the employer maintains that there is no finding of physical aggression against him. It is noteworthy that Ms. Norman was prepared to accept that the Complainant had acted in self defence but upheld the dismissal anyway.
There was undue reliance on the evidence of Mr. Keelaghan that he did not see Mr. Fallon strike the Complainant. He did not see either man strike the other but great emphasis is placed on his evidence that he did not see Mr. Fallon strike the Complainant. Five other witnesses similarly did not see either man strike the other.
The investigation should have found that either it could not establish if Mr. Fallon struck the Complainant or it should have based its assessment on the evidence of the two principals. It would have been reasonable for the investigators to question why a long standing member of staff would have made an unprovoked attack from a kneeling position?
Mr. Depinna’s re-investigation focused on a matter that is not in dispute ie that Mr. Keelaghan did not see Mr. Fallon strike the Complainant.
The dismissal of a long standing member of staff with an unblemished record is unreasonable, disproportionate and unfair.
The email of 22 August 2018, noted that the Complainant had not been afforded the opportunity to cross examine Mr. Fallon. The offer, in response, of putting questions to him is not adequate and was not taken up. The right to cross examine is set out in theLyonscase, see reference above. This denial is particularly serious as the Complainant was later denied the chance to be heard at the meeting on 31 August 2018.
It is fundamentally unfair for Mr. Depinna to have conducted a re-investigation. It was for the investigators to find facts. No record of Mr. Depinna’s interviews with two witnesses have been provided to the Complainant and, as perKelleher v An Post(20160 IECA195,a decision-maker is not entitled to rely on materialmaterial gleaned outside the hearing that has not been disclosed to the party. Also, having invited the Complainant to review the investigation report and to revert to him, it was not reasonable for Mr. Depinna then to pass the comments back to Mr. Faherty and simply to adopt Mr. Faherty’s unsurprisingly positive view of his own report.
It is not acceptable for a decision maker in a disciplinary hearing simply to read a prepared statement and hand it to the person subject to the disciplinary action. This renders the dismissal unfair. Natural justice requires that both sides be heard.
This was a breach of s.6(7) of the Acts, it was a breach of the Complainant’s implied terms of contract entitlement to be dealt with fairly and it is a breach of the LRC Code of Practice in S. I. 146/2000.
The Complainant was unfairly dismissed and seeks redress in the form of reinstatement.
Note; The Court sought details of mitigation and arguments to support the claim for re-instatement.
The Complainant’s representative used the opportunity to make an unsolicited further submission, which is summarised as follows;
Reference is made to UD 2196/2011, in which the EAT took account of provocation and a previous excellent record. In the case ofIvory v. Arthur Brennan, UD 895/1984,the Tribunal determined that self -defence is acceptable to the extent that the employee limits the amount of force to that which is reasonable.
The Non-Fatal Offences Against the Person Act, 1997 defines assault and includes in the definition causing a person to believe that they are likely to be subjected to force or impact. The Complainant believed he was about to be assaulted. Fight or flight is an automatic physiological reaction.
InFrizelle v. New Ross Credit Union Ltd (1997) IEHC 137,the High Court made clear that principles of natural justice must be unequivocally applied.
The length of service of an employee must be considered in effecting a dismissal, seeJohnson Matthey Metals v. Harding (1978) IRLR 248.In this case, the Respondent did not take this into account.
InA Climber v A Tree Management Company ADJ-00019437,the Adjudicator accepted that an employee was entitled to fight back when attacked. In that case, it was accepted that dismissal was a disproportionate penalty.
An investigator must be impartial and be seen to be impartial. In this case, Mr. Faherty formulated the allegation as gross misconduct arising from the allegation of assault. He then conflated allegations of bullying without due process and went beyond a finding of fact of gross misconduct. This resulted in a highly prejudicial and flawed process. In over-stepping his brief of fact-finding, he negated the right to natural justice and fair procedures.
A flawed process led to a flawed outcome. Both principles of natural justice were breached. Mr. Faherty was not sufficiently removed from the incident, so the ‘nemo judex in sua causa’ principle was breached. As the Complainant did not have a fair hearing, the principle of ‘audi alteram partem’ was breached.
The Complainant seeks re-instatement. He is currently a carer for his sick mother. She lives near where he worked so, if reinstated, he could keep an eye on her. If he is not reinstated his future job prospects will be diminished and local talk will have an adverse effect on his life generally. He has 19 years’ experience with the Respondent and wants his job back.
Summary of further points on behalf of the Respondent.
Note; Because the Complainant’s representative forwarded an unsolicited supplementary submission, the Court afforded the Respondent’s representative the opportunity to make any points that they wished the Court to consider.
The references to fights etc. are irrelevant. The facts of this case are that it is admitted that the Complainant struck a colleague with an iron bar and ,by any analysis, the decision to dismiss in such circumstances is within the band of reasonableness.
In formulating the allegations to be investigated, there was no value judgment by Mr. Faherty. Striking another person is defined as ‘gross misconduct’ in the company procedure.
No evidence of mitigation of loss has been advanced and the Complainant has chosen not to give evidence and, therefore, cannot be questioned on this. No evidence has been offered as to why re-instatement would be appropriate. Even if the Court was to decide that there was any level of unfairness, re-instatement would not be the appropriate remedy, given the circumstances. The Complainant has become a Carer and is, therefore, not available for work. No blame for any losses can be laid at the feet of the Respondent.
The Complainant has never expressed any remorse or sought to convey apologies to a colleague assaulted by him, who has been out of work since the incident.
Mr. Keelaghan witnessed the incident and saw nothing to corroborate the evidence that Mr. Fallon had struck the Complainant.
Even if the Court was to find that there were elements of the process that might have been done better, there were no flaws that rendered the process to be unfair.
Mr. Noel Faherty
Mr. Faherty is Operations Manager of the Respondent. He led the investigation into the incident on 4 July 2018.
The witness described how he was alerted to the incident when Mr. Fallon and the SIPTU Shop Steward came to his office on the day. Mr. Fallon was bleeding from his face.
The witness showed the implement that had caused the injury. He noted that it was at least twice as long as a normal ruler and many times heavier. It was a piece from a machine.
The witness described the investigation. He described how he interviewed the Complainant with his representative. The Complainant said that he struck Mr. Fallon in self defence with a ‘ruler’ as Mr. Fallon was hitting him over the head with a piece of cardboard while he was in a crouching position. He said that he was wearing ear muffs, so he had not heard what Mr. Fallon had said to him.
Mr. Fallon told the investigation that he had built up a head of steam when he saw a picture drawn on a large piece of cardboard that was supposed to be a picture of him. He had approached the Complainant with the cardboard. He was adamant that he had not struck the Complainant and had only thrown the cardboard after he was struck.
Mr. Keelaghan had told the investigation that he had not seen Mr. Fallon strike the Complainant. His line of sight was such that he could only see the top of the Complainant’s head. The witness showed the cardboard to the Court. He noted that it was a lengthy piece and that if Mr. Fallon had struck the Complainant he would have had to raise this above his head to bring it down onto the Complainant. The witness said that this could not have happened without the action being visible to Mr. Keelaghan. Because Mr. Fallon was between Mr. Keelaghan and the Complainant, Mr. Keelaghan did not see the Complainant strike Mr. Fallon but the Complainant accepted that he had done so. The witness noted how the cardboard was so flimsy that it folded when brought downwards with force.
The witness said that some witnesses referred to the Complainant being angry on the day. Some witnesses referred to the Complainant jeering Mr. Fallon. The witness said that he regarded this as incidental but he felt that it could not be ignored as if the Complainant had returned to work, this matter would warrant further investigation. The reference to this secondary matter was, the witness said, similar to a reference by one witness to an alleged strong smell of alcohol from Mr. Fallon, something that had been refuted subsequently by the doctor that treated Mr. Fallon, so that the witness was satisfied that this was a ‘red herring’.
The witness described a second meeting with the Complainant and his representative, at which he was given a chance to make any points. The witness said that there was no request to be allowed to cross examine Mr. Fallon.
The witness noted that the references to bullying and alcohol were secondary matters but that it would have been inappropriate to ignore them in the report.
The witness said that striking a colleague amounted to gross misconduct within the employment terms and conditions of the Complainant. This was reflected in the finding of the investigation. The report recommended that this be dealt with as a disciplinary matter. The witness noted that the conclusion regarding gross misconduct was not binding on the disciplinary decision maker.
The witness described how Mr. Depinna had asked him subsequently to respond to a number of points regarding the investigation that were raised by the Complainant’s representative.
He had responded regarding the description of the instrument used by the Complainant in striking Mr. Fallon. He had given the response above regarding references to bullying. As to whether the matter had been instigated by Mr. Fallon, he had indicated that this was a separate matter that could be investigated if Mr. Fallon returned to work, ( the witness noted that he had not yet done so). With regard to the fact that the Complainant had been in a crouched position, the witness said that it had never been suggested that he had been intent on physical aggression. With regard to a suggested undue reliance on Mr. Keelaghan’s evidence, the witness noted that he had a good line of sight to the incident and had relevant evidence.
Under cross examination, the witness accepted that he had never investigated an allegation of bullying against the Complainant and said that such an investigation could have happened only if the Complainant had returned to work.
In response to questions from the Court, the witness outlined his experience of conducting previous investigations. He outlined that the role involved fact finding, conclusions and recommendations on next steps. He was required to reach a decision and his decision was that there had been gross misconduct.
The witness confirmed that there were no terms of reference for the investigation.
The witness noted that in the course of the investigation allegations of bullying had been made against another member of staff and that these allegations had been investigated subsequently.
On re-direct questioning, the witness said that he had definitely not formed a view about the allegations prior to the investigation.
Mr. Winston Depinna
Mr. Depinna is the General Manager of the Respondent. He was the disciplinary decision maker.
The witness described receiving the investigation report and a floor plan. He said that he had facilitated the Complainant and his representative with a meeting after several attempts to set one up had failed.
The witness said that his role was to make a decision on evidence and that he was free to disagree with the conclusions of the investigation that there had been ‘gross misconduct’.
The witness denied curtailing the right of the Complainant to speak at the meeting on 20 August 2018. He gave the Complainant the report at this meeting and invited responses.
The Complainant’s representative responded on 22 August 2018. He made 7 points in his response. Points 1 to 5 related to aspects of the investigation. The witness referred these to Mr. Faherty for his response as he felt that these were best answered by him. Point 7 raised the question of cross examination of Mr. Fallon. The witness invited the Complainant’s representative to put any questions in writing. He noted that this had not been requested in the investigation. He confirmed that he never received any such questions.
The witness said that he took into account all aspects of the investigation report. In order to satisfy himself about what could or could not have been seen, he staged a simulation. He also sought some clarity from some witnesses. He did not take further statements.
The witness said that when he was satisfied on the evidence, he had to make a difficult decision as he had worked with the Complainant’s father and he had worked with the Complainant for some years.
It was set out clearly in the Complainant’s terms and conditions that striking was an act of gross misconduct. He focused on the assault in reaching his decision. He had to take account that an employee struck another with an implement, drawing blood. This was a serious offence at the highest level and he was thankful that there had not been a more serious injury.
The witness said that the bullying allegation had not formed part of his decision.
The witness said that a lesser penalty would not have been appropriate as the site needed to focus on health and safety, the offence was at the upper end and could not be tolerated. The witness felt that he had no option.
The witness confirmed that he read his decision at the meeting on 31 August 2018. The Complainant or his representative had not requested the right to speak. The witness said if they had done so he would have postponed the implementation of his decision to review whatever was provided.
Under cross examination, the witness reiterated that he had read out his decision at the meeting on 31 August 2018. He said that his conclusions were based on the investigation report.
The witness denied that he had re-investigated the incident and said that he had simply carried out a simulation. The witness said that he had not invited the Complainant or his representative to the simulation.
Under questioning from the Court, the witness accepted that the onus for fair procedures rested with the employer. The witness said that he had not reached conclusions when he referred questions back to Mr. Faherty that had been put by the Complainant’s representative. The witness believed that the Complainant had been given an opportunity to respond to the report. The witness said that if the Complainant had wished to respond to the decision of the witness to dismiss the Complainant, conveyed at the meeting on 31 August 2018, the witness would have considered any such response.
The witness said that he did not believe it required the input of the Complainant in the simulation exercise as he was merely seeking to re-assure himself of the accuracy of witness evidence.
The witness said that the Complainant had the opportunity to rebut the evidence of Mr. Keelaghan when he had received the witness statements.
The witness said that his role was to receive the investigation report and, if an allegation was upheld, to decide on the measures to be taken.
Ms. Colette Norman
Ms. Norman is the HR Manager for Smurfit Kappa Ireland. She had conducted the appeal of Mr. Depinna’s decision.
The witness described receiving an appeal on behalf of the Complainant by letter dated 3 September 2018. This outlined 9 grounds of appeal. A meeting with the Complainant and his representative took place on12 September 2018.
The witness said that no fresh evidence was put forward and the documents considered were the investigation report, the disciplinary decision and the grounds of appeal.
With regard to the suggestion that references to bullying could have influenced her decision despite never having been investigated, the witness said that she based her decision on the assault. She accepted, and it was not disputed, that Mr. Fallon had approached the Complainant. She said that would be a matter for investigation when Mr. Fallon returned to work. She accepted that the Complainant was on his hunkers at the time. However, the Complainant struck out with an implement and she considered the response to be excessive.
The witness said that there was a clear conflict in evidence between that of Mr. Keelaghan and the Complainant. For this reason, Mr. Depinna had conducted a simulation. She denied that this was a re-investigation. She noted that he had also referred questions back to Mr. Faherty in order to get clarity.
The witness took the Complainant’s length of service into account but said that he struck a colleague with an implement.
With regard to the question of cross examination of Mr. Fallon, the witness noted that the opportunity to set out questions by the Complainant had been offered and not taken.
The witness said that if the Complainant or his representative wished to speak at the meeting on 31 August 2018, they could have asked to do so but they did not.
The witness was satisfied that there was no bias behind the decision to dismiss.
The witness reiterated that she had made her decision solely on the basis of the assault.
The witness said that she considered all 9 points of the appeal and she did not see any basis to overturn the decision or to re-consider the penalty. The witness did not hold with an argument of self-defence as the response was excessive even if the facts had not been corroborated.
The witness said that the bullying allegation carried no weight in the decision to dismiss.
As no new grounds were put forward, the witness upheld the decision to dismiss.
Under cross examination, the witness accepted the right to self defence but stated that this was a case of excessive force. When asked what measure she used to determine this, the witness said that the Complainant had responded by striking a colleague in the face with an implement and drawing blood.
Under questioning from the Court, the witness stated that the templates used for investigation were not national templates and were particular to the Galway plant.
When asked if anything could have been done better in the processes leading to dismissal, the witness stated that there was a thorough investigation which resulted in a report to Mr. Depinna for him to use as a basis for determining next steps.
On re-direct, the witness said that Mr. Depinna was entitled to satisfy himself that he could stand over the contents of the investigation report.
Mr. Eanna Keelaghan
Mr. Keelaghan works on the factory floor of the Respondent’s premises.
The witness gave evidence that on 4 July 2018, he was working on a machine when an exchange of words between the Complainant and Mr. Fallon caught his attention. He could see the top of the Complainant’s head when the Complainant was approached by Mr. Fallon but because Mr. Fallon was between the witness and the Complainant he could only see the top of the Complainant’s head over the shoulder of Mr. Fallon.
He did not see Mr. Fallon strike the Complainant although he was watching carefully. Because he could not see the Complainant fully, he could not have seen him strike Mr. Fallon.
Under cross examination, the witness said that, because of his positioning, he could not see the Complainant strike Mr. Fallon. He did not see either man strike the other.
Mr. Paul Hardy.
Mr. Hardy gave evidence on behalf of the Complainant.
The witness said that, at the relevant time, he had been an official with SIPTU and that he had represented the Complainant throughout the disciplinary process.
The witness said that at the meeting with Mr. Depinna on 31 August 2018, he had expected to be given the opportunity to speak on behalf of the Complainant. He assumed that this was the reason he was there. However, Mr. Depinna had simply read out a document which, it transpired, was a letter of dismissal.
The witness said that, if given the opportunity, there was a wide range of matters that he would have wished to raise on behalf of the Complainant.
Under cross examination, the witness said that, while he was not sure he had ever heard an admission that the Complainant had struck out with an implement, this was never in dispute.
The witness said that prior to the meeting on 20 August 2018, he had received the notes of all previous meetings. He accepted that he had raised issues in writing and received responses prior to the meeting on 31 August 2018. However, he said that there was no opportunity given to him to speak at this later meeting.
When it was put to the witness that he had not been denied the opportunity to speak, the witness said that his first opportunity to do so was after the decision to dismiss had been conveyed, at which point it was a matter for appeal.
The witness did not accept that the responses given to points raised at the appeal were all meaningful.
In response to questions from the Court, the witness said that there was no substantive discussion with Mr. Depinna regarding the case at the meeting on 20 August 2018. There was not the opportunity. The meeting consisted mostly of exchange of documents, including the investigation report. The witness said that he thought he would have had an opportunity to make points at the meeting on 31 August 2018.
The applicable law.
Unfair Dismissals Act
It is accepted that the Complainant struck a colleague in the face with an iron implement. The exact circumstances of this occurrence are in dispute. The Complainant claims that, at the time, he was being subjected to an assault by being struck by a cardboard box while in a crouching position. This is not corroborated by the one witness, Mr. Keelaghan, who told the Court that he did not see Mr. Fallon strike the Complainant.
It would be unreasonable to expect any employer to disregard the central facts that an employee struck a colleague in the face with an implement and that there is no corroborating evidence to support his assertion of self defence. All other things being equal, it can scarcely be a surprise if an employer, in such circumstances, decides that dismissal is warranted and, in many circumstances, these facts would be unlikely to lead any third party to a conclusion other than that the dismissal is within a band of reasonable responses.
However, the Complainant’s representative makes a number of important points.
S.I. 146/2000 is a Code of Practice for disciplinary procedures. It is clear in drawing a distinction between the investigation and disciplinary stages of a process and it is clear in setting out the right of a worker to be heard fully before a disciplinary penalty is imposed.
The Court cannot be satisfied that the process used by the Respondent was fair or that it met the most basic of requirements.
In determining that the actions of the Complainant were gross misconduct, the Investigator over-stepped his role, which is to establish facts. This is, undoubtedly, prejudicial to the consideration by the disciplinary decision-maker. It goes beyond inappropriateness. It is an unacceptable flaw in the entire process.
The decision of Mr. Depinna to stage his own re-construction, having received the investigation report, is inexplicable and serves to highlight the lack of understanding on the part of the Respondent of the division in roles between investigation and disciplinary decision making.
What is even more concerning is that Mr. Depinna never gave the Complainant the opportunity to argue his case before deciding on dismissal. It is, as the Complainant’s representative noted, a right in natural justice to be heard. A written exchange does not meet that right. The Complainant was entitled to be heard and to be afforded the opportunity to make arguments, answer questions and debate points, before any decision was taken.
Coupled with the over-stepping of the investigation role, the process through which it was determined that the Complainant should be dismissed is fatally flawed and there can be no doubt that the dismissal does not meet the tests for fairness.
The Court is surprised that a large employer such as the Respondent should be so lacking in its procedures and would suggest to the Respondent that they might seek to rectify this deficiency to avoid such observations arising in any, possible, future case.
Notwithstanding the undeniable and significant flaws in the process used, it is inconceivable that the Court would direct an employer to re-instate or re-engage an employee who has admitted to striking a colleague in the face, causing injury, with an iron implement, in circumstances where the only witness does not corroborate a claim of self-defence. The Court notes also that the Complainant chose not to avail of his right to give evidence under oath to the Court.
The Respondent has a duty of care to all of its employees and it is difficult to see how that duty could be met by allowing the Complainant to return to work.
However, given the flawed procedures, the dismissal is unfair within the meaning of the Act and the Court is obliged to consider an appropriate remedy. For the reasons outlined, the Court is not in favour of re-instatement or re-engagement. The remaining option is that of compensation.
In determining a level of appropriate compensation, the Court has to have regard to actual losses and any attempts made to mitigate same. No evidence on either aspect was provided. The Court was told that the Complainant is acting as a full-time Carer. This is commendable but, not surprisingly, no evidence was given that the Complainant had made any attempt to secure alternative employment.
Of even more significance in this evaluation is the fact that the Court is required to consider the extent that the Complainant contributed to the loss of his employment. In this regard, the Court cannot ignore the fact that the Complainant admitted to striking a colleague with an iron implement and that no evidence was offered to the Court to corroborate claimed self-defence. Indeed, the evidence of the one witness does not support this claim. It is, therefore, not necessary for the Court to consider if striking a colleague in the face with an iron implement while, allegedly, being struck with a cardboard box could be regarded as self-defence, if such a claim was independently corroborated.
What is uncontested is that the Complainant struck a colleague in the face with an iron implement and drew blood. The only circumstance in which this could be deemed to be acceptable would be in circumstances of self-defence. In the absence of anything other than an assertion of self-defence, which the Complainant did not support by giving evidence under oath, the Court has to conclude that the Complainant is, ultimately , responsible for his own dismissal , that he made a 100% contribution to same and that the appropriate compensation is nil.
The Decision of the Adjudication Officer is over-turned.