Complainant

Respondent

Parties

Timothy  Seaton

Breffni Air Ireland Unlimited

Representatives

Ms. Julie Nolan

 Peninsula Business Services

Act

Complaint Reference No.

Date of Receipt

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

CA-00050069-001

28/04/2022

The Complainant commenced employment with the Respondent on the 05/02/2020 as a general operative worker. The Complainant submits that he was unfairly dismissed by the Respondent who terminated his contract of employment on the 23/3/2022. The Respondent refutes this allegation and contends that the Complainant was summarily dismissed on grounds of gross misconduct further to a full investigation and disciplinary process. The Complainant received weekly remuneration in the sum of €585. 

On the 28/04/2022, the Complainant referred a complaint to the WRC pursuant to the Unfair Dismissals Act 1977, as amended.

The Respondent denies that the Complainant was unfairly dismissed from his employment and submits that any procedural flaws would not have changed the outcome. The following is a summary of the evidence of the witnesses for the Respondent and legal submissions.

Summary of Evidence of Gary Johnston, Production Manager

The witness stated that he is employed as a production manager and was the Complainant’s line manager at the time of the incident. The witness described the work environment as a manufacturing facility with a lot of machinery including hammers and power tools.

Mr Johnston described the incident which occurred between the Complainant and a named employee which he witnessed. He stated that the Complainant was agitated that day and was provoked by the named employee on the basis that he was plunging his hammer into his work bench and that he moved into the Complainant’s work area. The Complainant walked off and met the named employee in the adjacent bay area and they both started fighting. He stated that the Complainant headbutted the named employee and this was followed by a slap to his head. The witness separated both employees. He decided to suspend the Complainant on full pay and took statements from both the Complainant and the employee named. 

There was an investigation meeting held on the 9/3/2022 which David O’Doherty attended as an observer. The minutes of the meeting were exhibited at the hearing. He stated that his role was to overlook the meeting to ensure that it was done fairly. Ms. Nolan attended as the Complainant’s representative.

The Complainant was shown CCTV footage of the incident during the meeting. He stated that the Complainant provided an explanation for the assault on the basis that the named employee was being aggressive towards him and that he was provoked by him playing rebel music. He further stated that the named employee had called him “an English bastard”. The witness stated that this was the first time he had heard this and referred to this reference in the minutes of the investigation meeting.

The witness stated that it was alleged by the Complainant in his complaint form that he had reported these remarks to him some months previously, which he denied, and stated that no report regarding derogatory comments was made to him. 

Cross Examination

It was put to the witness whether the remark “an English bastard” allegedly made by the named employee against the Complainant was taken into consideration during the investigation process. Mr. Johnston stated that the named employee denied using this term in reference to the Complainant but accepted that he did play rebel music in different parts of the workshop. The witness stated that he hadn’t heard the rebel music being played. In relation to a witness statement from a named employee who referred to the playing of rebel music on the date of the incident he stated that an investigation was carried out into this matter. 

Mr Johnston confirmed that the decision to dismiss the Complainant was not considered during the investigation meeting. He stated that the named employee was subject to a separate investigation and was dismissed further to the incident and investigation process.

Mr Johnston stated that each employee received an employee handbook. He confirmed that he was not aware of any complaints lodged by the Complainant prior to the incident. He confirmed that this was the first time that he had chaired an investigation process and Mr O’Doherty’s role was that of an observer at the meeting, he was there to oversee the process. 

Summary of Evidence of David O’Doherty, Director of Operations

Mr O’Doherty confirmed his position as Director of Operations with the Respondent company and  Mr Johnston’s line manager. He stated that the Respondent has a total of 270 staff, and a Managing Director leads the organisation. He described the workshop in terms of health and safety as high risk, in view of the hand and power tools, in addition to Stanley knives that are available there.

Mr O' Doherty described the incident on the 7/3/2022 and stated that he took the incident very seriously as nothing like that had happened before. He stated that he was concerned that the team was inexperienced in dealing with circumstances like this, and therefore he needed to participate in the process and guide them in the right direction in the context of the investigation process.

He stated that Mr Johnston undertook the investigation process, and he held a disciplinary hearing on the 10/3/2022. He referred to the investigation process regarding CCTV footage of the incident and various witness statements. He stated the purpose of the disciplinary meeting was to get a good understanding of what happened on the day of the incident.

Mr O’Doherty stated that the Complainant admitted to assaulting the named employee and confirmed that he decided to dismiss the Complainant further to the investigation and disciplinary process. He stated that he considered dismissal the most appropriate sanction on the basis that the Complainant had admitted to the assault. He also stated that he had to consider the risk if there was another assault given the work environment considering the broader picture of the workshop where there were 30/40 men working in this facility. He stated that he had to consider the risk to them in the event of another assault which could be worse and could involve power tools.  Mr O’Doherty emphasised the risk of a future assault. He confirmed that he did consider self-defence in the context of weighing up the most appropriate sanction.

Mr O’Doherty stated that he did consider alternatives to dismissal and looked at all options, but he considered that his conduct amounted to gross misconduct and considering the risk of another assault, he considered it the most appropriate sanction. He confirmed that he considered provocation as a defence in respect of the Complainant’s conduct and stated that this matter was addressed in the context of the dismissal of the named employee.

As Mr Johnston had not dealt with an investigation process before, Mr O’Doherty was of the view that he needed help in this regard. In the context of the investigation process he stated his role was to meet and greet the various parties. He stated that the Complainant had admitted that his conduct amounted to gross misconduct and because there might be a “wrinkle” in the process that it should not invalidate it.

Cross Examination

It was put to Mr O’Doherty why he considered himself the best placed to support Mr Johnston through the investigation process. He replied that due to his experience he considered himself best placed to guide him through the process to ensure the process stayed on track. He described the Complainant as remorseful and emotional during the investigation meeting.

Mr O’Doherty stated that the Complainant had not come to his attention prior to the incident in question and that he had signed off on his promotion.

Regarding the named employee, he stated that there were other incidents involving him, that he was subject to an investigation process as other staff had made complaints against him and provided statements and confirmed that he was dismissed.

Mr O’Doherty stated that there was friction between the Complainant and the named employee who was playing rebel music which did affect the Complainant. 

Mr O’Doherty stated in the context of the incident, the Complainant had the person who could have solved the matter beside him (referring to his line manager Mr Johnston) but the Complainant chose to use physical violence to resolve the matter.  He stated that the Complainant left Mr Johnston and walked across the floor to the named employee, he could have had the matter addressed, it was within his remit to resolve it, but he snapped.   Mr O’Doherty agreed that the Complainant was provoked but a solution to the situation was within the Complainant’s hands.

In response to a question from me Mr O’Doherty confirmed that further to the investigation process no report was provided to him, he was given a bundle of documents.

In response to a question from me Mr O’Doherty confirmed that he considered alternatives to dismissal such as moving the Complainant to another site or asking him to provide an apology, he also considered issuing a final written warning. He stated considering all matters and that a physical assault amounted to gross misconduct, he emphasised that a lot of time was spent assessing whether the incident amounted to gross misconduct, he determined that dismissal was the most appropriate sanction. He referred to the fact that further to the employee handbook the sanction for gross misconduct is dismissal. Mr O’Doherty also stated that he was required to consider the impact upon the business if he followed another route and had to be very careful to protect the broader business interests.

In response to a question from me Mr O’Doherty confirmed that he did consider the impact of the sanction of summary dismissal on the grounds of gross misconduct upon the complainant, and that he empathised with the Complainant as it was his first disciplinary issue.

In re-examination it was highlighted that there was a time lapse regarding the CCTV footage, and that there was a time stamp regarding the time of the incident.

Summary of Evidence of Lorraine Day, Human Resource Manager 

Ms. Day confirmed that she had no role in the case prior to the appeal hearing and that her role was to chair the appeal hearing. She stated that she spoke with Mr O’Doherty prior to the appeal hearing who informed her that she had full autonomy to overturn the decision to dismiss the Complainant.  Ms. Day stated that she had no personal involvement in the case and had no previous dealings with the Complainant, apart from providing him with a copy of the employee handbook.

Ms. Day confirmed that the Complainant did not report any other incidents to HR.  Ms. Day stated that she upheld the finding of dismissal because it was clear from watching the CCTV footage that the Complainant’s conduct amounted to gross misconduct. She stated that she did not consider alternatives to dismissal as further to the respondent’s disciplinary procedure dismissal was the appropriate sanction for gross misconduct. She further stated that she considered that Mr O’Doherty was involved in both the investigation and disciplinary processes as a “small flaw”, but as the assault was admitted by the Complainant his conduct still amounted to gross misconduct.

Cross Examination

In cross examination Ms. Day confirmed that she commenced employment with the Respondent in September 2019 working on a part time basis and that she was responsible for payroll. 

Ms. Day stated that she was asked by Mr O’Doherty to chair the appeals process. She stated that the Complainant based his appeal on two main grounds, that of self-defence and provocation.  Considering the first ground, she stated that she had watched the CCTV footage and that she could not see how self-defence applied in the circumstances of this case.  She stated that she had considered the defence of provocation but because the Complainant had not lodged any complaints previously against the named employee, she did not consider that it applied in his case.

Ms. Day stated that she was bound to follow the employee handbook, and that the handbook stipulated that once gross misconduct was established the appropriate sanction was dismissal.

Re-examintion

On the second hearing day Ms. Day was re-examined at my request regarding further details of her role in the appeal process.

Ms. Day confirmed that at the time of the appeal process she was the HR manager and that Mr O’Doherty was employed in a more senior position to her within the respondents’ company. She confirmed that she had dealt with an appeal process prior to this in another company.

Ms. Day stated that in August 2022 she left the role of HR manager and at the time of this hearing was employed as the payroll administrator.

She stated that her remit regarding the appeal process was to review the original decision. She confirmed that she had spoken to Mr O’Doherty prior to the appeal hearing and asked him if she had full autonomy to overturn his decision. She stated that she also spoke to the managing director on the matter.

Ms. Day stated that once it was established that an assault had occurred this was considered gross misconduct. She stated that she felt she could not consider any alternative sanctions to dismissal and referred in this regard to the employee handbook. According to the employee handbook an assault on another employee amounted to gross misconduct and therefore the penalty was dismissal.

In response to a question from me Ms. Day stated that she did consider provocation but there was no evidence of the same. She expanded on this by stating that there was no written complaint made by the Complainant against the named employee, contrary to what Mr Seaton had claimed, she could not find any evidence of any complaints made by him.

Ms. Day confirmed that she did consider the complainants’ and other witnesses’ statements in the context of the appeal hearing. She stated that she also considered the fact that the Complainant’s workshop manager was present and beside him on the day of the incident and that he did not make a report to him.

Legal Submissions

The following is a summary of the legal arguments submitted by the Respondent by way of written and oral submissions.

It was submitted that the Respondent operates as a specialist ventilation company specialising in fire rated ducting for the mechanical engineering industry.

It was confirmed that the Complainant was employed as a General Operative on the 5/2/2020 and signed a contract of employment on the 14/6/2020 which stated that the contract and the employee handbook formed part of his terms and conditions of employment, and he was provided with a copy of the employee handbook.

On the 7/3/2022 the Complainant assaulted another member of staff and was seen to have headbutted a named employee and continued to strike his head following the initial assault.  

It was submitted that the Complainant in his investigation meeting admitted to the incident, stating that he “gave him a nudge with his head and raised his left arm to push him back.” During this meeting the Complainant was shown CCTV footage of the incident and said “I know that I have done wrong. I don't want to lose my Job. I believe that this is a situation that should have been dealt with previously.”

On the 15/3/2022 the Complainant was invited to a disciplinary hearing to be held on the 16/3/2022 and to be chaired by Mr O’ Doherty. The Complainant was provided with copies of the documents that would be relied upon at the hearing and was offered the opportunity to be accompanied by a fellow employee of his choice or trade union official.

On the 16/3/2022 the disciplinary hearing was heard; the Complainant was accompanied by Ms. Julie Nolan who participated over the phone. During this hearing the Complainant admitted that he was frustrated and that his actions were not appropriate. The Complainant also acknowledged that the assault amounted to gross misconduct as per the minutes of the disciplinary hearing.  

On the 23/3/2022 the Complainant was summarily dismissed for gross misconduct and Mr O’ Doherty informed the Complainant of his right to appeal to Ms. Lorraine Day, HR Manager by way of letter dated 23/3/2022.

On the 25/3/2022 the Complainant appealed the decision to dismiss him to Ms. Day and set out his grounds of appeal. On the 30/3/2022 Ms. Day wrote to the Complainant to arrange his appeal. Ms. Day summarised the Complainant’s grounds of appeal as:

“• You believe the company failed to consider the provocation/ self-defence element identified in some statements and the CCTV.

• You believe that both parties committed acts of gross misconduct which led to the incident occurring and the actual incident itself.

• You believe that during the investigation process the CCTV clearly identifies a breach of the personal harassment policy and interference of equipment by ………..and ………… statements. 

• You believe the company breached the disciplinary procedures in relation to conducting a fair process.”

On the 11/4/2022 the Complainant’s appeal was held and on the 19/4/2022 Ms. Day wrote to the Complainant and informed him that the dismissal finding was upheld. The decision was based on the following grounds;-

“i)  I have reviewed the CCTV and statements provided by witnesses and I could not find evidence to substantiate this matter of concern therefore it will not be upheld. ii) Both you and your former colleague were dealt with through the disciplinary process; therefore this point will not be upheld. iii) From reviewing statements provided by the witnesses, I can see you did bring it to your managers attention, at this point it should have been left for him to deal with as per the company’s procedures, but you proceeded to go over to ………… which resulted in the incident, therefore this point will not be upheld. iv) I have reviewed the process followed and would agree that there was a slight error in the process due to David O ‘Doherty being in attendance in both the investigation and the disciplinary hearings. However, given the severity of the incident and taking this into account, it would not affect your dismissal and will not be upheld. v) I took into consideration your length of service but given the severity of the incident I felt dismissal in this incident was the appropriate sanction to issue.”

The Respondent relies upon Section 6(4) (b) of the Unfair Dismissals Act 1977 which specifies that the dismissal of an employee on the grounds of conduct, should not be considered an unfair dismissal for the purposes of the Acts.

The Respondent placed reliance upon the determination of the Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 which 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. It was submitted that this is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978.  

The Respondent submitted that the Complainant was accused of assault, namely headbutting his colleague and striking him on the head. It was further submitted that there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, and that 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.  

It was submitted that the High Court in its deliberations noted that the test for reasonableness was set out in Noritake (Irl)Ltd v Kenna (UD 88/1983) as follows:

1)     Did the company believe that the employee misconducted himself as alleged? 2) if so, did the company have reasonable grounds to sustain that belief? 3) if so, was the penalty of dismissal proportionate to the alleged misconduct?

Applying the above questions to the circumstances of the case it was submitted that the Respondent had evidence of misconduct on behalf of the complainant, and this was confirmed by him. Furthermore, the respondent’s handbook sets out the sanction for gross misconduct which is described as “dangerous behaviour, fighting or physical assault;” as examples of the same. It was further submitted that the Complainant admitted in his disciplinary hearing that he was aware that assault amounted to gross misconduct.

It was submitted that the Complainant in his complaint form alleges that he made a report to Mr Johnston about the named employee. This is denied by the Respondent on the basis that no reports or grievances were made to them prior to this incident. It was submitted that Mr Johnston will say in evidence that the Complainant raised allegations to him on the day of the assault and during this conversation took off towards the named employee.

The Respondent placed reliance on the S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

The Respondent accepts that there may be some procedural issues surrounding the dismissal, however it was respectfully submitted that such issues do not necessarily negate the fairness of the outcome. The Respondent submitted that the Complainant was also given access to an internal appeal mechanism.

In support of the Respondent’s position, the Respondent relies upon the Circuit Court decision of  Elia Erian Aziz v The Midland Health Board [1995] E.L.R. 48.

The Respondent submitted that the penalty for assault in their handbook is specified as gross misconduct which states; “You will be liable to summary dismissal if you are found to have acted in any of the following ways: b. dangerous behaviour, fighting or physical assault.”

The Respondent also places reliance on the case of Loftus and Healy -v- An Bord Telecom (13th February 1987, unreported, HC.

It was submitted that the Respondent acted reasonably and proportionately in the circumstances of this case.  The Respondent denies the claim as set out in the complaint form that the Complainant was not aware of his right to be accompanied by a Union Representative as this was clearly set out in all correspondence to the Complainant and in the employee handbook. The Complainant was issued with a handbook in June of 2020 and again in January 2022.

In this regard the Respondent relies upon the seminal case of Looney & Co. Ltd. v Looney UD843/1984, where the EAT stated that it is their responsibility to “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.”

The Respondent also refers to the decision of Allied Irish Banks Plc v Brian Purcell [2012] 23 E.L.R. 189. Regarding mitigation and the level of appropriate compensation the Respondent refers to Smurfit Kappa Ireland Ltd V Nicholas Folan UD/19/174.

The Respondent disputes the relevance of self-defence which was pleaded in the Complainant’s appeal on the basis that the Complainant of his own initiative went to the bay occupied by the named employee and of his own initiative headbutted and struck the named employee.

The Respondent submitted that any flaws in their procedure would not have changed the outcome and further submitted that the Complainant has admitted to what he did and is now trying to claim for compensation on a technicality.

The Respondent made further arguments regarding mitigation as the Complainant had found alternative employment on the 12/4/2022.

In Summation

It was submitted by Mr Wall on behalf of the Respondent that the Complainant had not raised any previous complaints regarding the playing of rebel music by the employee named. He submitted that the Complainant was liable for his conduct which amounted to gross misconduct and stated that he had conceded to that himself.

It was further submitted that if there is a procedural flaw in the investigation/ disciplinary process that it does not invalidate the entire process and the outcome.                                                                                                                                                                                                                                                                                                        

The Complainant gave evidence outlining the history and nature of his employment with the Respondent and the background giving rise to his complaint of unfair dismissal. The Complainant submits that were several fundamental flaws regarding the investigation and disciplinary process which renders the outcome of summary dismissal on the grounds of gross misconduct unsafe and unfair. The following is a summary of the Complainant’s evidence and legal submissions.

Prior to the second hearing day the Complainant submitted four witness statements from four named employees.

Summary of Evidence of the Complainant, Timothy Seaton

The Complainant stated that he was not satisfied with the investigation process on the basis that Mr O’Doherty had attended all meetings in both the investigation and disciplinary processes. He stated that Mr O’Doherty did most of the chairing and asked him most of the questions during the investigation meeting. The Complainant stated that Mr O’Doherty should not have been present at both the investigation and disciplinary meetings.

Mr Seaton stated that it was his understanding that Ms. Day was involved with payroll and he was not aware that she was the HR manager. He referred to the letter from Mr O’Doherty dated 23/3/ 2022 regarding the outcome of the disciplinary hearing and stated that Mr O’Doherty failed to consider that he felt threatened by the remark of the employee named, and that he was using his hammer in an aggressive manner on the day of the incident. He further stated that there were mitigating circumstances regarding the playing of rebel music by the named employee.

In response to a question from his representative, Mr Seaton confirmed that in his opinion Ms. Day’s position was not as senior as that of Mr O’Doherty. Mr. Seaton stated that he was provoked by the name employee, on the day of the incident the named employee slammed his hammer, and stated he was “mouthing” at him. He stated that on the day of the incident the named employee called him “a fucking English bastard”, consequently he felt totally threatened by him.

The statement of a named witness dated 7/3/2022 was exhibited at the hearing, which Mr Seaton stated referred to the named employee playing rebel songs prior to the incident and referring to the Complainant as “an English bastard”.

The statement of another named witness dated 7/3/2022 was exhibited at the hearing. Mr. Seaton stated that he informed the lead fabricators about the named employee playing rebel music and the comments he had made about him. He further stated that his line manager Mr. Johnston was aware of the rebel music being played.

Regarding the investigation meeting which Mr. Johnston chaired, Mr Seaton stated Mr O’Doherty asked most of the questions and he started the meeting. He said Mr. O’Doherty stated at the start of the meeting that as he was more experienced in dealing with investigations, he would be present to assist Mr Johnston in the process. Mr Seaton stated that Mr. O’Doherty asked 90% of the questions during the meeting and Mr Johnston was more of an observer in the process.

Mr Seaton stated that he received the notes of the investigation meeting, however in his view the minutes don't always reflect the reality of the meeting. He confirmed that he signed the minutes and stated that he was not sent the disciplinary policy but was referred to the employee handbook.

In response to a question from his representative, Mr Seaton stated that he did not have a fair process as no process was followed.

Cross Examination

Under cross-examination Mr. Seaton stated that he was previously involved in senior management for 15 years.

It was put to Mr Seaton that he stated in his complaint form that weeks before the day of the incident he made a complaint regarding a colleague to his line manager Mr. Johnston regarding derogatory remarks. Mr. Seaton confirmed he had made a prior complaint before the date of the incident to Mr. Johnston.

Mr Seaton confirmed that he found the behavior of the named employee to be threatening. Mr. Seaton stated that he believed he was provoked by the named employee on the day of the incident on the basis that he allegedly said to him “You fucking English bastard you are in my space now”. The Complainant stated that the named employee had a hammer in his hand and was playing rebel music in the background when he approached him. He denied that he headbutted him but just approached him quite closely and raised his arm to him.

The Complainant was asked why he did not report the named employee to his manager Mr. Johnston who was beside him on the day of the incident. Mr. Seaton stated that he had never experienced any behavior like that before, that he was not thinking clearly at the time of the incident and that “if I could turn the clock back, I would never have put myself in that situation”. He concluded that the named employee could have smashed his head in with a hammer. 

Mr Seaton confirmed that he did not make a written complaint about the named employee through the respondents’ grievance procedure but informed the lead fabricators who he considered to be on par with his manager.

Regarding the involvement of Mr O’Doherty in both the investigation and disciplinary processes, Mr Seaton stated that he did refer the matter to Ms. Day as part of his appeal and was informed by her that they had followed the correct process. Mr Seaton explained that the correct process was not followed by the respondents as Mr O’Doherty was involved in both the investigation and disciplinary procedures and therefore Mr O’Doherty could not be impartial or unbiased.

Regarding the appeal process, he stated that it should have been handled at a higher level of management. Mr Seaton agreed that the employee handbook does not provide for a higher level of management to hear the appeal. He stated that he had no personal issue with Ms. Day but that in his view the decision had been made prior to the appeal hearing. Mr Seaton stated that he did not believe that Ms. Day was independent from the investigation and disciplinary processes on the basis that Mr O’Doherty was employed at a more senior level than her.

Legal Submissions

The Complainant submitted in his complaint form that there were several procedural flaws regarding the investigation, disciplinary and appeal process.

The Complainant submitted that prior to the date of the incident “I had reported a colleague of mine to my line manager Gary Johnson that this colleague was passing derogatory remarks not just towards me for a lot of the team.” The Complainant submitted that on 7/3/2022 that there were several references made by the named employee regarding his nationality, and that he brought this to the attention of his floor supervisors. He described the incident and stated that he noticed that the named employee was staring at him and had begun to slam his hammer on the workbench which he found very threatening. He stated that he began to walk towards the named employee who called him “an English bastard”.

The Complainant acknowledged that he “did get very irate with these behaviors and felt very vulnerable and what I seen as self-defense I did reach and nudged him as identified in cctv we both locked horns as I would describe and then one of my colleagues and line manager separated us”. It was further stated he “was so upset that I allowed myself be drawn into such behaviour however it was and still is the only time I had encountered this bigotry behavior and was extremely upset….”.

The Complainant submitted that he had not received a copy of the updated employee handbook and stated, “I had not received a copy of the amendments so was unaware of quite a lot of the policies and procedures”.

The Complainant submitted that he feared he would not receive a fair due process regarding the disciplinary process as Mr O’Doherty had held the investigation meeting and that he could not rely on him to be unbiased in the process. He further submitted that when he received his sanction of dismissal on grounds of gross misconduct with immediate effect that “While I felt this outcome was very severe I was more upset that at the end of my process I was pointed in the direction for an appeal if I so wished to appeal to a HR manager Lorraine Day”. The Complainant stated that if he had been aware that HR advice was available, he would have welcomed the opportunity to discuss the matter with her at an earlier stage.

The Complainant described the appeal process as “a slight waste of time as at the meeting Lorraine was not fully up to speed with investigation meetings etc, she told me she was in fact a payroll manager and had just inherited the HR piece…..”. He concluded by stating that he was not sure that Ms. Day was the person best placed to make decisions on his future.

As part of the Complainant’s submission Ms. Nolan forwarded several emails to the WRC exchanged between herself and Mr O’Doherty mainly regarding the appeal process. By way of email dated 24/3/2022 from Mr O’Doherty to Ms. Nolan, the role of Ms. Day was outlined as follows; “… We don't have a full time HR manager and Lorraine provides HR support and has inherited the title along with her full time day job. We are in a transition process at present to get the role filled….”. y Ms. Nolan replied to Mr O’Doherty’s email on the 24/3/2023, stating “I was wondering why you chaired both investigation and disciplinary if there was in fact a HR manager.”

The Complainant submitted four witness statements from employees named as part of his submission.

In Summation

It was submitted by Ms. Nolan on behalf of the Complainant that due process was not followed nor did the Respondent adhere to their own employee handbook.

It was further submitted that the mitigating circumstances relating to provocation by the named employee were not considered, as acknowledged by Ms. Day in her evidence. It was also stated that Ms. Day was not introduced as the HR manager and Ms. Nolan disputed Ms. Day’s contention that she had full autonomy to overturn the sanction imposed by Mr O’Doherty.  In conclusion it was submitted that Mr O’Doherty influenced each stage of the process from investigation, disciplinary, to the appeal process.

During and post-hearing the WRC received several pay slips from the Complainant for his current role for the purpose of calculating his financial loss, which were exchanged with the Respondent. 

The Relevant Law:

Section 6 of the Unfair Dismissals Act 1977, as amended, (the Act) states, in the relevant part, as follows:

“6.— (1)Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal…... “

Section 6(4)(b) expressly lists the grounds where dismissal of an employee shall not be deemed to be unfair including dismissal wholly or mainly resulting from the conduct of the employee.

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair.

Section 6(7) provides for an Adjudication Officer to have regard :-

 “(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 referred to in section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” 

Section 7 outlines the provision for a remedy in the circumstances of a successful claim for unfair dismissal. 

The combined effect of the above provisions of the Act requires me to consider whether the Respondent's decision to dismiss the Complainant, on the grounds of gross misconduct, was reasonable in the circumstances. It is well established that is not the role or function of the Adjudication Officer to determine the guilt or innocence of the employee but rather to assess based on the relevant evidence, whether a reasonable employer, in the Respondent's position and circumstances, would have done so. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent is required to demonstrate that fair process and procedures were applied when reaching the decision to dismiss an employee.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court in the case of Bank of Ireland v O’Reilly [2015] 26 E.L.R. 229 where it was held 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 …. “.

In its judgement in Frizelle -v- New Ross Credit Union Ltd [1997] IEHC 137, the High Court provided a number of points or “premises” which must be established to support an employer’s decision to terminate employment for misconduct, including the following:

“1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.      Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.      The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.      The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5.      The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

Gross misconduct is not defined at Section 6 (4)(b) of the Act, but conduct is provided for, which has given rise to a body of case law regarding the interpretation of this provision.

As cited by the Respondent, the Employment Appeals Tribunal in Lennon v Bredin M160/1978 provided an outline of what types of behaviour will constitute gross misconduct for the purpose of Section 6(4)(b) of the Act in the following terms:

“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 serious category”. 

In accordance with the above caselaw, the remit of my role as the Adjudication Officer in this case is not to substitute my own judgment for that of the employer but rather to objectively assess the evidence to determine whether the decision to dismiss the employee was reasonable for that employer, in the circumstances of this case. 

I am required firstly to consider two key issues in the context of deciding the fairness or otherwise of the dismissal in this case. Firstly, whether the Respondent acted reasonably in dismissing the Complainant in the circumstances and secondly, whether the dismissal adhered to the principles of fair procedures and natural justice. In considering the second element given the particular facts of this case, I must also consider whether the procedural shortcomings as identified by the Complainant are to such a degree as to render the decision to summarily dismiss the Complainant unsafe and outside the “band of reasonable responses test” as set out above by the High Court in Reilly. 

In this regard I note that Ryan, in Redmond On Dismissal Law, 3rd Ed 2017 at para 13.20 in dealing with the question of procedural versus substantive justice,  frames the question in the following terms;“ An employer may be able to justify a procedural omission if it meets the onus  of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee. The correctness of this proposition was tested in Meath County Council v Creighton….”.  

As cited by the Respondent, the High Court considered this question in Loftus and Healy v An Bord Telecom (13 February 1987), and stated that it was not a question of whether the ex-employees were deprived of procedures to which they were entitled but:

“whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish… [the basis of its dismissal} as the whole or the main reason for and justifying their dismissal.”

The Labour Court in Panasov v Pottle Pig Farm UDD1735 concluded that the manner in which the decision was made to dismiss the Complainant was void of any form of procedural fairness and offended against the principles of natural justice to which he was entitled and stated;

“The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.”

It is also well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures. S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000, provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and outlines the principles of fair procedures for employers and employees generally.

Findings and Conclusions / Application of Law to the Factual Matrix

Dismissal as a fact is not in dispute, therefore in accordance with Section 6 (6) the burden of proof rests with the Respondent to establish that in the circumstances of this case the dismissal was a fair dismissal in accordance with the provisions of the Act and established case law.

It is undisputed that the Respondent summarily dismissed the Complainant on the 23/3/2022 on the grounds of gross misconduct involving a physical assault where the Complainant assaulted a named employe and struck him on the side of his head which was established further to an investigation process. 

In the main the material facts are not in dispute in this case. It is clear from the minutes of the investigation and disciplinary hearings that the Complainant did not dispute that he assaulted the named employee on the 7/3/2022 and acknowledged that his conduct amounted to gross misconduct. I note that the Complainant denied under cross examination that he headbutted the named employee but stated that “he just approached him quite closely and raised his arm to him”.  I do not accept the Complainant’s evidence on this point which is inconsistent with the documentary evidence as per the minutes of the investigation and disciplinary hearings. In his evidence the Complainant did not dispute that a serious physical assault took place which was initiated by him, that he was shown CCTV footage of the incident during the investigation hearing which he did not dispute, and admitted that what he did was “wrong” as outlined in the minutes.

The Complainant was provided with a procedural process which entailed an investigation, disciplinary and an appeal process. I note that contrary to the Complainant’s submission that he did not receive any policies or procedures that he was emailed a copy of the employee handbook in June 2020 and an updated version in January 2022. I note the following key points regarding the procedural process. 

On the 7/3/2022 the Complainant was suspended by Mr O’ Doherty on full pay to allow for an investigation into the allegations to take place. I further note that the Complainant was fully informed of the reason for his suspension and the allegations against him were clearly set out in writing. I note that on the 9/3/2022 an initial investigation meeting was held which was chaired by Mr Johnston and the Complainant was accompanied by Ms. Julie Nolan by way of a phone dial in. I note that further to the employee handbook and as stated in the Respondent’s letter dated 15/3/2022 the Complainant was entitled to be accompanied by a fellow employee or a trade union official. I note that the Respondent accommodated the Complainant’s request to be accompanied by a friend, Ms. Nolan.

I note that the Complainant attended an investigation meeting on 9/3/2022 which Mr O’Doherty attended and was chaired by Mr Johnston where the Complainant was shown CCTV footage of the incident. Further to the minutes of the investigation meeting and the evidence of the complainant, I note that the footage was not disputed by the complainant, as reflected in the signed minutes of the meeting. 

I note that the Complainant was furnished with all relevant documents prior to the disciplinary hearing on the 16/3/2022 to include witness statements from himself, the named employee and four named witnesses. I note that Mr O’Doherty chaired the disciplinary hearing, and the Complainant was accompanied by Ms. Nolan by phone dial in. I note further to the signed minutes of the hearing that the Complainant admitted that he was frustrated and that his actions were not appropriate. The Complainant also acknowledged that the assault amounted to gross misconduct when he stated “I fully understand that it was a serious assault…. Any assault is considered gross misconduct but I am hoping that the lead up to it should be considered and not just what happened during the day….”.  As outlined in the minutes, when asked if he would change anything about the day in question the Complainant replied “of course I would have handled the matter differently. I probably should have requested a meeting with Gary not just chat him on the work floor.”

The Complainant was provided with an appeal process to be heard by Ms. Day, the HR Manager. The Complainant’s appeal hearing was held on the 11/4/2022 and on the 19/4/2022 Ms. Day wrote to the Complainant and informed him that the dismissal finding was upheld and set out her reasons addressing each of the grounds of appeal.

I am satisfied based on the evidence of the parties and the documentary evidence as referred to above that the substantive reason for the dismissal on the grounds of gross misconduct involving a serious physical assault by the Complainant as outlined above, falls within Section 6 (4) (b) of the Act.   Furthermore, applying the relevant caselaw as set out in Lennon v Bredin M160/1978 where “violent assault or larceny or behaviour in the same serious category” are described as within the definition of gross misconduct, I am satisfied that the respondent’s finding in this regard was correct. I note that the Respondent’s employee handbook refers to “dangerous behavior, fighting or physical assault” as examples of gross misconduct and provides for the sanction of summary dismissal if an employee is found liable in this regard.   

The issue to be determined is whether the procedural shortcomings as submitted by the Complainant are of such significance to render the decision to dismiss on the ground of gross misconduct outside the “band of reasonable responses test” as set out above by the High Court in Reilly and further to the case law outlined above.

I am satisfied based on the evidence of the parties, the documentary evidence, and applying the relevant tests as set out in the case law outlined above, given the particular facts of this case that notwithstanding the procedural shortcomings, that the decision to dismiss the Complainant on the ground of gross misconduct was within the “band of reasonable responses test” for an employer in the Respondent’s position and circumstances. I make this finding based on the following reasons.

The principal procedural flaw, as identified by Ms Nolan and the Complainant, relates to the independence and impartiality of the process. It was submitted that Mr O’Doherty was involved at  each stage of the process, therefore each stage was compromised on the basis that Mr O’Doherty was present at both the investigation and disciplinary hearings and allegedly played a significant role at the investigation meeting therefore compromising his impartiality to carry out the disciplinary hearing and to reach a fair decision regarding dismissal.

Regarding the appeal process, it was argued that considering Ms. Day’s role as the payroll/HR Manager was lower in seniority to Mr O’Doherty’s role within the respondents’ organisation, that she was not best placed to chair the process and was not independent from the previous procedures as she was selected by Mr O’Doherty.  Further submissions were made that both Mr O’Doherty and Ms. Day did not consider the defence of provocation to include the mitigating circumstances such as the alleged discriminatory remarks made by the named employee towards the Complainant, on the day of the incident and beforehand and the playing of Irish rebel music.  

An employee’s right to an independent and impartial process is well established within the jurisprudence on fair procedures and natural justice. As provided for further to the Code of Practiceon Grievance and Disciplinary Procedures, S.I 146/2000 an employee; “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 or circumstances”.

I accept the complainants’ evidence when he stated that Mr O’Doherty’s role in the investigation process was more than that of an observer.   I can appreciate from the Complainant’s perspective how Mr O’Doherty’s impartiality as the key decision maker could be open to question given his role in the investigation meeting. It is my view that from a procedural perspective, Mr O’Doherty should not have had any role in the investigation process, to ensure that both processes were separate and distinct.  

I also have concerns from a procedural perspective, with the fact that Ms. Day as the chair of the appeal process, was more junior in her role than Mr O’Doherty, a fact which she acknowledged in her evidence. It is my view that Ms. Day had a degree of uncertainty regarding her role as the chair of the appeal process which was reflected in her evidence when she stated that she checked her remit with Mr O’Doherty regarding her power/autonomy to overturn his decision. It is my view that an employee with greater seniority to Mr O’Doherty, such as the Managing Director of the Respondent’s organisation, should have chaired the appeal process in line with best practice norms in industrial relations matters.   I further note that no investigation report was provided by Mr Johnston further to the investigation process.

However, in line with the wording of Section 6(1) of the Act I must have regard “to all the circumstances” of this case. Accordingly, I am required to weigh up the impact of the procedural shortcomings considering the tests set out in the established case law as outlined above. Applying the test set out by the High Court in Loftus and Healy v An Bord Telecom (13 February 1987), the question to be determined is whether the breach of fair procedures as outlined above in particular the right to an independent and impartial process is to such an extent that the Respondent has failed to establish that the Complainant’s conduct, consisting of a serious physical assault, was the whole and main reason justifying his dismissal.  Accordingly, I find based on the oral evidence of all the witnesses and the documentary evidence that the Complainant’s conduct, consisting of a serious physical assault which amounted to gross misconduct, was the main and only reason for his dismissal. 

Applying the rationale of Labour Court as set out in Panasov v Pottle Pig Farm UDD1735 it is clear from both the oral and documentary evidence that the allegations against the Complainant were fully set out and properly investigated and the Complainant was afforded an opportunity to put forward a full defence during all procedural stages including the disciplinary and appeal process. I note that the Complainant was afforded the opportunity to comment on the CCTV footage and was provided with all witness statements. He also had the benefit of an appeal hearing and was represented by a representative of his choice beyond what was permitted further to the employee handbook.

I do not accept the Complainant’s submission that the mitigating circumstances relating to provocation were not properly considered by either Mr O’Doherty or Ms. Day. I accept Mr. O’Doherty’s evidence who stated that he did consider provocation and alternatives to dismissal but considering the serious nature of the assault determined that dismissal was the appropriate sanction. Accordingly, it is clear to me that Mr O’Doherty did consider the proportionality of the sanction of summary dismissal. It is my view that he was also entitled to consider the respondent’s work environment consisting of the workshop where there were 30/40 men working in this facility with access to power tools, and the risk of another assault. I further note that the named employee involved in the incident was also dismissed.

I can appreciate the difficulties for and impact upon the Complainant if the discriminatory remarks regarding his nationality were made by the named employee as alleged, in addition to the playing of Irish rebel music which appeared to the Complainant to be aimed at him. I can understand that the Complainant felt threatened by the named employee on the day of the incident given his aggressive demeanor. However, on this point I agree with Mr. O’Doherty who stated in evidence that the Complainant had his line manager beside him on the day of the incident and could have made a full report to him on all incidents but chose to resolve the matter by way of physical violence.  I note from the Complainant’s evidence when he stated that “if I could turn the clock back, I would never have put myself in that situation” which appears to me to acknowledge that he would have handled matters differently. 

Furthermore, I do not accept the Complainant’s submission that Ms. Day did not consider the mitigating circumstances or provocation as set out by him in his grounds of appeal. I accept Ms. Day’s evidence when she stated that she she did consider provocation but there was no evidence of the same as the Complainant had not made a written/oral complaint against the named employee, contrary to what Mr Seaton had claimed.

On this point, I find the Complainant’s evidence to be inconsistent and unconvincing. He stated in his complaint form and in evidence that he had made a previous complaint to his line manager about the conduct of the named employee, however under cross examination he stated that he made a complaint to the lead fabricators who are not members of the management team. I accept Mr Johnston’s evidence that he never received any complaints from the Complainant regarding the named employee, which was corroborated by Ms. Day’s evidence.

It is clear to me from the evidence of Mr. O’Doherty and Ms. Day that they both considered the mitigating circumstances put forward by the Complainant and provocation as a defence in determining an appropriate sanction which they considered to be summary dismissal.

Overall and based on the aforesaid reasoning I am satisfied that the requirements of Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137 were met and that the Complainant’s dismissal was not unfair. It is my view given the facts of this case and based on the evidence that had there been no procedural shortcomings a similar outcome would have been reached.

In conclusion, I am satisfied based on all the evidence of the parties both oral and written, that notwithstanding the procedural shortcomings as outlined above, given the facts of this particular case, that the Respondent’s decision to summarily dismiss the Complainant on the grounds of gross misconduct was within the “band of reasonable responses test” as set out above by the High Court in Reilly and further to the case law as out above.   Accordingly, I find that the Complainant’s dismissal was not unfair further to the provisions of the Act.

Based upon the aforesaid reasoning, I find this complaint of unfair dismissal not to be well founded and accordingly dismiss same.

Gross misconduct- procedural fairness- procedural shortcomings -