Complainant

Respondent

Parties

Keith  O'Neill

Leo Laboratories Limited trading as Leo Pharma Ireland

Representatives

Mr Dave Curran of SIPTU

Mr Éinde O’Donnell of Alastair Purdy LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00049935-001

27/04/2022

The Complainant was an employee of the Respondent pharmaceutical manufacturer working at their site in Crumlin for over 20 years. That plant has been in operation for almost 70 years and is a major employer in that community.

On the 16th of October 2021 the Complainant was one of a number of employees who attended an event at a local GAA club organised by an employee who had taken voluntary severance.

At that event the Complainant had a verbal interaction with another employee. At one point the Complainant and this colleague went outside the GAA club and the Complainant assaulted the colleague who was hospitalized. This colleague is referred to Colleague A in the course of this decision.

The matter was reported to the Respondent who instituted a disciplinary process and dismissed the Complainant.

Early in the course of this process the Respondent reviewed CCTV footage showing the Complainant punching his colleague. While the Respondent took the view they could not lawfully rely on this footage due to the Complainant objecting to its access, a HR official, then employed by the Respondent, informed the disciplinary decision maker and the appeals officer of its existence.

The Complainant did not discover this until the first day in the WRC hearing and was granted an adjournment. There was then a long period of time before the hearing resumed in which the WRC sought to relist the matter but the parties sought postponement.

The Complainant’s Trade Union Official Mr Dave Curran made oral and written submissions.

The matter concerns an extremely regrettable incident. It did not occur at an employer event. Employees have a right to privacy and other employees being present a private event is not a sufficient reason for the Respondent to conduct a disciplinary process related to that event.

There are still community-based employers like the Respondent who employ a large workforce based in the same, relatively small, community. Ultimately, they are going to have lots of social gatherings involving colleagues and it is not reasonable for the employer to treat these as work events and try to regulate them.

There is a fundamental unfairness to this process. The Complainant did not view nor was he told about the CCTV footage by management. There was a conscious decision to withhold this from him and he did not know that the Respondent had viewed it until the first day of the WRC hearing. The Complainant was asked questions they knew the answer to.

There is an issue of consistency in the Respondent’s approach also. They have been physical altercations and threats involving employees which were dealt with by way of alternative sanctions or not at all.

The Complainant gave evidence under oath. He worked for the Respondent for over 21 years. He had never been involved in any disciplinary process before this one.

His recollection of the incident was that he had swung at Colleague A, missed and went back upstairs. Until he saw the cctv he was convinced he didn’t hit him and he only saw the cctv after he was dismissed. The first time he saw the cctv was the 12th of January 2022.

Colleague A was drunk and had been messing with him at the bar and had grabbed him. The Complainant had told him to get off him and they ended up shouting at each other. It was broken up and Colleague A then came up to him and asked him to go outside which the Complainant did. (Out of fairness to the Colleague A, who will be probably be identifiable to his co-workers if they read this decision, I would note that the Complainant’s version of this interaction inside the bar differs from Colleague A’s as well as a number of other recorded witness statements).

The Complainant thought he threw a dig but didn’t connect and the co-worker fell due to unsteady ground. The Complainant went back to the bar after he swung, he immediately turned around and didn’t see Colleague A fall and hit his head off the ground. 

He went back inside because he thought the man was okay.

He accepts he has since seen the cctv and it shows him hitting Colleague A and him falling. On reflection he regrets what happened.

He then gave evidence as to incidents involving other individuals who were involved with violent incidents but were not dismissed. Eight years ago there was an incident where a man held scissors against a female employee and had to be restrained. He got anger management and a change of department.  Five years ago, a member of the warehouse went after a truck driver and physically assaulted him. Nothing came of the incident as it was one person’s word against the other. There was an assault at a wedding which was attended by many of the Respondent’s staff. There was no investigation into that incident.

He was told by someone that there was chatter going around the floor that the Respondent had seen the cctv. He was told this informally by colleagues and not management.

He accepts that he lied to a limited extent during the disciplinary process. He didn’t think he could say he threw a dig and missed. He accepts it would have been reasonable for him to be in trouble and that he should have put his hands up.

Mr Éinde O’Donnell, the Respondent’s solicitor, made oral and written submissions on their behalf.

While the Respondent accepts that the cctv is a procedural issue it needs to be considered in the broader context of the other evidence presented. The investigation had established that two employees went outside and one came back in. The other was left in a pool of blood. No credible version of events was ever given by the Complainant and he has admitted he lied during the course of the internal processes.

Conclusions were properly drawn from large body of gathered evidence including approximately 40 witness statements and a text message. From this the Respondent had decided that on the balance of probabilities the Complainant struck his co-worker. Any reasonable person would have reached the conclusion and no prejudice caused to Mr O’Neill.

There was sufficient connection between crime connected and the workplace for the matter to be considered a disciplinary one, it concerned a serious assault by one employee of another at an event attended by a large group of employees, a cohort of whom complained directly to the Respondent.

Ms Caitriona McCormack gave evidence under affirmation. She is a Production Manager working for the Respondent. On the 18th of October 2021 she went to the production floor at the start of her shift and found that there a number of employees who wanted to talk to her about an alleged assault that had happened at a going away drinks for a member of staff.

The alleged that the Complainant had assaulted Colleague A who had been unresponsive when he was discovered. She was anxious that the Complainant would be returning to work in these circumstances. She took the matter to HR and believed that it would have an impact on employee relations.

HR asked her to investigate and she began work on this immediately. She got in touch with the co-worker who was in the Mater Hospital. He wanted to make a complaint and gave her a statement over the phone.

HR decided to suspend the Complainant on full pay.

She interviewed approximately 20 witnesses taking a total of 40 statements. No witness saw the Complainant strike the man in question. However, there were witnesses to the immediate aftermath who exited the club and saw this person on the ground and not breathing. A verbal altercation had happened at the bar between one of the other employees and the Complainant immediately after the discovery of the injured co-worker. The Complainant was recounted as having said some form of the words “he got what he deserved” by a number of witnesses.

In interview the Complainant denied hitting his co-worker. He was on notice of his interview and had representation. Ms McCormack decided on the basis of the witness statements and a text message that the Complainant had hit his co-worker and outlined her findings in a report.

Under cross examination Ms McCormack accepted that the event was not funded or approved by management. It was still during covid and management generally didn’t sanction any event but it was related to an employee’s finishing up drinks.

She had viewed the CCTV footage but it didn’t form part of the investigation. She went down to the club and the manager of the club showed it to her on a laptop. She viewed footage from a camera outside the front entrance door and saw the Complainant strike his co-worker. She viewed the footage relatively early in the investigation.

The Complainant was asked if he would consent to the Respondent viewing the footage but did not agree so she didn’t use it in arriving at her findings. At the time she asked the Complainant if she could use it, she had already viewed it.

She informed a senior HR official who then worked for the Respondent that she had seen it. To her knowledge no one else saw it. She didn’t inform anyone else. 

She had five points of evidence that she was felt strong enough to proceed and make a finding that the assault had happened, independent of the CCTV. This included a text message where the Complainant said someone “wanted a straightener” and then apologised in apparent reference to the assault. On review of the evidence, she was led to a conclusion that the Complainant had hit him.

She was unaware of any event at a wedding and this did not form part of her decision to investigate or findings.

Mr Brian Sweetman gave evidence under oath. He chaired the disciplinary hearing and made the decision to dismiss the Complainant. 

He had the benefit of Ms McCormack’s report. However, he was also aware that there was cctv footage showing the Complainant striking his co-worker. He decided to disregard this as he knew it was inadmissible.

A hearing was arranged and the Complainant had a full opportunity to put forward his case and challenge Ms McCormack’s report. The Complainant put in a written submission.

Mr Sweetman came to the conclusion that there had been a serious assault by one employee against another at an event where there were many employees present. He felt it was challenge to morale and that dismissal was the only real option based on the facts available.

Mr Sweetman clarified under cross examination that the Complainant never raised any other incidents allegedly involving other staff with him. He was clear that he is unaware of the examples cited by the Complainant in the hearing. 

Mr Niall Dunne gave evidence under oath. He is the Respondent site lead for the plant where the Complainant worked and had been with the Company for seven years. He heard the Complainant’s appeal. He had no prior involvement in the investigation. He knew who the Complainant was as he was a long-standing member of staff.

He was made aware of existence of cctv footage the previously mentioned senior HR official and he was told that it showed the Complainant striking his co-worker. He considered it hearsay and discounted it.

The Complainant was represented by Mr Curran in the hearing. He challenged specific aspects of two witness statements, the right of the Respondent to look at the assault at all and the issue of potential other serious incidents which went unpunished.

Mr Dunne decided to interview a witness and the assaulted co-worker again to clarify specific elements of their statements which they did. He decided not to consider any argument related to other incidences as he did not see them as relevant.

The Complainant sought to be transferred or to undertake anger management courses as an alternative to disciplinary sanction but Mr Dunne rejected this. He believed that dismissal was the only appropriate course of action as the matter concerned a serious assault of a co-worker. He believed in the circumstances it was a matter the Respondent needed to address. In his time in the Company there was no other incident where the serious injury and hospitalisation of an employee as a result of an assault by another employee.

Unfair Dismissals Act (“UDA”)

Once an employee has established that they have the 12 months’ service and that they have been dismissed, the burden will be on the employer to show that there were substantial grounds justifying the dismissal.

Section 6(4) outlines that the conduct of the employee is a lawful reason to dismiss an employee.

Section 6(7) of the UDA provides an overriding obligation on the employer to have acted reasonably in relation to the dismissal. This duty to act reasonably does not allow an Adjudication Officer to substitute their own judgement for that of the employer. Instead, I must decide whether the decision to dismiss, at the time it was made, was within the range of reasonable responses of a reasonable employer. This position is outlined in more detail in Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241 (“Reilly”).

The Complainant has brought three main challenges to this decision to dismiss which I will consider in turn.

The Role of the Employer

Shortly after the Ms McCormack began the Respondent’s investigation, the Union’s house committee, i.e. the site’s committee of worker representatives, wrote to the Respondent demanding that it cease. Their position was restated in the Union’s submission to the WRC and is as follows:

“We the SIPTU committee in Leo Pharma are writing to you on behalf of our members. As we have previously raised with you, it is of great concern to our members that the company is conducting investigations into alleged events which took place at a private social event on Saturday 16th October.

This was not a company event; it was a private social function.

 • It did not take place on, or near Leo Pharma premises.

• It was not organised by Leo Pharma, or by a current Leo Pharma employee.

 • It was not funded by Leo Pharma.

• It did not take place on company time, but on the weekend.

• Individuals attending this event did not do so in the knowledge that their employer would be monitoring the event for potential disciplinary purposes. Should this matter be allowed to proceed, it is our great concern that all employees of Leo Pharma could be potentially affected in the future.

 Many workers in Leo Pharma socialise with one another outside of work. Some may be in relationships with co-workers. This investigation could set an alarming precedent for our members that they will be potentially monitored and even disciplined over matters outside of work.

 Therefore, we the committee believe that this is a collective issue which affects our members. And we reserve the right to pursue it as a collective dispute. We believe that our members, and all workers have the right to privacy. We have the right to “switch off”, and to be free from monitoring by our employer outside of work hours. There are alternative avenues for individuals to pursue civil matters, and to our knowledge this has not been done in this case. Therefore, we strongly urge you to refrain from proceeding with any disciplinary investigations underway. Failure to do so will leave us no option but to pursue this matter as a collective dispute.

We look forward to your response, and we hope to resolve this matter in a just and amicable manner.

Please contact us below if you wish to discuss this further”

The Respondent, either in response to or in anticipation of this challenge took legal advice around the same time. Their then solicitors wrote a letter advising them that they were justified in continuing the investigation, highlighting the Employment Appeals Tribunal (“EAT”) case of Gregory Crowe v An Post UD1153/2014 (“Crowe”). Mr Curran for the Complainant has also pointed to this case and seeks to rely on it in submitting that the Respondent did not have jurisdiction to consider the allegation of assault which arose from the night of the 16th of October for the reasons outlined above.

Mr O’Donnell rightly points out that the EAT in Crowe was dealing with a totally different situation in that the matter concerned the conviction of an employee for drug related offences and not the assault of another employee. I do also think that it is important to point out that the way the issue is labelled by the parties (and at times the EAT) does not necessarily sit well with the text of the UDA or the decision of the High Court in Reilly, as outlined above. The question is not one of jurisdiction but one of reasonableness. My role is to determine whether the employer behaved reasonably in dismissing an employee for actions taken outside the workplace rather than to decide the extent or scope of their powers in law.

The EAT did outline a rationale and set of considerations which I think are relevant to determining the reasonableness of an employer’s actions in such a situation. The tribunal concluded:

“In summary if a dismissal for out of work conduct is to be fair there must be a genuine connection between the employee’s offence and the employment. The connection must  be such that:

·         It least to a breach of trust and or/causes reputational and/or other damage to the company;

·         The employee’s offence makes the employee unsuitable to continue in the job -for  example if an employee is convicted of theft and his job involved dealing with case then this could well be sufficient grounds for dismissal;

·         The employee’s offence causes the employer to genuinely lose trust and confidence in the  employee;

·         The employee’s behaviour risks bringing the employer’s name into ill repute;        

·         ….

The Tribunal is satisfied that the claimant’s conduct had destroyed the relationship of trust. The claimant (as postman) held a position of great trust. He was responsible for delivering mail, some of which may be registered mail containing money. A reasonable employer would also be concerned that the claimant might be forced into distribution of drugs (which his position as postman provided ideal cover for), given that he was convicted for having drugs for sale or supply.”

In investigating an allegation of one employee seriously assaulting another outside of the workplace and then taking disciplinary action when the allegation is upheld the Respondent was not behaving unreasonably.

The Complainant’s position, at the time of dismissal, was that the Respondent should have ignored Colleague A’s complaint and returned him to work. His colleagues would have to work with him while reasonably believing that he had seriously assaulted another worker and that their employer simply did not care about such violence towards workers once it happened outside the gate. I do not see how normal, safe or respectful working relationships could function in those circumstances.

Mr Curran does raise an interesting point in that there are still a few large and long-standing manufacturers, like the Respondent, located in the community that much of the workforce lives in. Over time this will give rise to a dynamic where the family and private life of many of the workers can overlap with the workplace and vice versa.  In these circumstances the employer must show a degree of care to avoid unreasonably becoming involved in matters it should not be. However, in this case the Respondent’s actions are nowhere near that scenario. The house committee’s description of the Respondent’s actions, as an invasion of privacy and ongoing monitoring of employees outside of the workplace, is inaccurate.

Other Incidents  

The Complainant referred to a number of other violent incidents which he says were dealt with differently or not at all and argues that this inconsistency in the Respondent’s approach is unreasonable.

The first concerned an alleged assault in the workplace against a third-party truck driver. It was not clear from the Complainant’s evidence what facts were actually established about this interaction as it involved one person’s word against another’s. Mr Dunne in his evidence was aware of the incident but that due to the injuries suffered by Colleague A believes it was not comparable. The second incident concerned a matter which allegedly occurred at a wedding which no Respondent witness was aware of. The third concerned happened 8 years ago and involved a serious incident where a male employee held scissors against a female employee and had to be restrained.  This was before Mr Dunne’s time as site manager and an employee of the Respondent. Mr Sweetman was unaware of that case. It does appear that the Respondent had been aware of the incident and according to the unchallenged evidence of the Complainant took no disciplinary action.

The decision in Reilly considers this issue of consistency in the context of a dismissed employee having been one of a number of employees who had forwarded crude emails and had been made an example of while his other colleagues were not held to account. The High Court found, in that case, that this was unreasonable and was one of a number of factors it took into account in determining that the overall conduct of the employer in that case was unreasonable.

I think the facts in this case differ significantly and I do not think the Respondent’s conduct towards the Complainant was unreasonable because of their approach to the other incidents cited. Using the sequence above, the first incident, unlike the assault of Colleague A, did not involve serious injuries and clear facts were not established. As far as I can tell the Respondent was unaware of the second incident. The third incident was serious and the Respondent reacted differently to how they treated the Complainant but it was dealt with 8 years ago and under different leadership. Standards and responses applied by employers can change over time and the decision in Reilly does not undermine that discretion, it just requires it to be exercised in a way that is not punitive. 

Mr Curran also points to the position adopted in the UK EAT in Procter v British Gypsum Ltd 1991. This is an interesting and informative case which considered an employee dismissal for assaulting another employee in a workplace where there had been a long history of employees fighting one another. However, I don’t think it is persuasive in this matter. The dismissal happened in 1988 and the period of potentially comparable cases in the workplace that it considered occurred from 1979 onwards. Returning again to the reasonableness test highlighted in Reilly I must consider the Respondent’s actions in light of norms and obligations as they are understood today, not 40 years ago.

For completeness I would not that there is also a procedural issue raised in relation to these incidents and the dismissal. They were not raised by the Complainant until his appeal in front of Mr Dunne. At that point the Respondent refused to engage with that point of appeal which was reasonable.  In normal circumstances employers cannot be reasonably required to deal with entirely new challenges to the dismissal in the course of appeal hearings. 

Fair Procedure

Section 14(1) of the UDA requires employers to have a written dismissal procedure and to provide employees with a copy of the same. Section 6(7)b of the UDA provides that the WRC may consider whether the employer has complied with their own procedure in determining whether the dismissal was unfair. There Respondent has an agreed disciplinary policy with SIPTU which appears to have been adhered to. The policy does not address investigation standards. The Complainant has raised the list of examples of gross misconduct justifying summary dismissal however the policy is clear that the list is not exhaustive and I do not accept that the Respondent was constrained by the stated examples.

The same provision of the UDA also allows the WRC to consider whether the employer complied with any code of practice relating to procedures regarding dismissal approved of by the Minister for Enterprise, Trade and Employment. The only such code of practice is Statutory Instrument 146 of 2000 created under the Industrial Relations Act, 1990. This code outlines a number of general principles which should govern a disciplinary process, most importantly disciplinary measures should adhere to the principles of natural justice and fairness.  As discussed below the Respondent did not adhere to this standard in a key aspect of the process.

 Non-adherence to the code of practice does not automatically make a dismissal unfair, however it is something the WRC can rely on in determining that a dismissal was unfair.

More generally Section 6(7)b of the UDA provides an overriding obligation on the employer to have acted reasonably in relation to the dismissal and that obligation extends to the process in deciding to dismiss the Complainant.  

The Complainant has raised a number of issues with the process and the Respondent’s investigation report and examples of specific witness testimony. On review of the report these I do not accept that any of these are a basis to determine that the Respondent unreasonably decided the Complainant had assaulted Colleague A. Ms McCormack undertook an extensive exercise in gathering information, evaluating that evidence and then making findings from that evidence. This decision-making process outlined in the report is quite detailed.

Much of the evidence is circumstantial but that did not make it unreliable. Not everything supported the finding that the Complainant punched Colleague A but on review of all the evidence cited in the report it was obviously open to Ms McCormack to determine that, on the balance of probabilities, the assault had happened.

In the course of the hearing it was discovered that Ms McCormack had reviewed the cctv showing that the Complainant had punched Colleague A and when the Complainant objected to the use of the cctv, without being told it had already been viewed, the Respondent decided Ms McCormack could ignore the fact that she had seen it. This information was then shared by a HR official with Mr Sweetman, as the disciplinary decision maker, and Mr Dunne as the appeals manager. It was never revealed to the Complainant.

Ms McCormack, Mr Sweetman and Mr Dunne have all outlined that they discounted this information. They all struck me as honest witnesses and I am sure they tried to discount it. However, it is not possible to determine whether something happened, with the understanding that there is definitive proof that it happened and not have that understanding influence the decision.    

The Complainant did not have sight of the cctv. He did not know that his employer definitely knew he had assaulted Colleague A. His sworn evidence is that at the time of his interview and disciplinary hearing, he himself did not know that he had struck Colleague A. For the avoidance of doubt, I find that hard to believe, particularly as it is based on him having supposedly punched Colleague A in a sort of 180 degree turn which ended with the Complainant facing away from Colleague A and entirely unaware that he had landed a punch to his head which had knocked the man unconscious. From that position he is supposed to have walked straight back inside without knowing that Colleague A had fallen to the ground behind him.

Notwithstanding my serious concerns in how the Complainant engaged in the disciplinary process I do not accept the Respondent acted reasonably in relation to the dismissal. Key evidence was circulated by a HR official to both Mr Sweetman who was asked to determine whether the Complainant should be dismissed and Mr Dunne who was asked to determine the appeal. This evidence was not provided to the Complainant. This was not an accident or a technicality. It made the process in determining the dismissal fundamentally unfair.

Award

The Complainant has sought compensation for his losses arising from the dismissal. He has not sought reinstatement or reengagement.

Compensation awarded under the UDA is limited to financial loss arising from the dismissal and is capped at two years’ renumeration. Section 7 of the act is clear on how awards should be determined and the High Court, per Mr. Justice Charleton in Jvc Europe Ltd v Panisi [2011] IEHC 279, has outlined the process in some detail.

The first step of is to determine financial loss which is defined by two separate categories, pursuant to section 7 of the UDA. The first is any actual loss and any estimated prospective loss of income attributable to the dismissal. The second category of financial loss is any actual loss and any estimated prospective loss in relation to superannuation and statutory redundancy rights.

The Complainant’s Union has been recognised by the Respondent for collective bargaining purposes for decades and as such his income for a general operative in manufacturing was comparatively high, including shift allowance he earned approximately €60,000 per annum.

He has had some short periods of employment since his dismissal in February 2022 but he was not able to obtain a comparable income. He has tended to earn something like half that figure when has been in work.

I can reasonably conclude financial loss resulting from the dismissal will persist for years, even after the Complainant gains employment and that it is in excess of the 104-week cap provided for in Section 7ci.

The act then requires me to consider a series of factors in deciding an actual award that is just and equitable in all the circumstances. These are set out at Section 7(2) and include the following:

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

Mr O’Donnell has highlighted the above criteria and argues that the dismissal was entirely caused by the Complainant’s own actions. It resulted from the Complainant’s serious assault of a colleague which he then persistently lied about, in not very credible terms, throughout the disciplinary process. Mr O’Donnell points to the the Labour Court decision in Smurfit Cappa v Nicholas Folan UD19/174 UDD2156 which considered similar circumstances and determined that a nil award was appropriate on the basis that the dismissal was solely caused by the Complainant’s actions. 

I agree with Mr O’Donnell, on review of the act and the evidence before me I conclude that it would not be just and equitable to award the Complainant any financial loss arising from a dismissal that he himself caused.

While I am critical of the Respondent’s handling of the cctv evidence I do not think it would be reasonable to require them to pay any compensation to the Complainant on the basis of 7(2)d alone, particularly when they had stayed within the limits of the disciplinary policy agreed with the Union.   

The claim is well founded, in accordance with section 7 I do not direct the Respondent to pay the Complainant any compensation.