Complainant

Respondent

Parties

Colin  Baker

ABEC Technologies Europe Limited

Representatives

Self-Represented

Mr. Peter McInnes, McInnes Dunne Murphy LLP

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-00061265-001

29/01/2024

The Complainant commenced employment with the Respondent on 30th May 2022. The Complainant was a full-time, permanent member of staff, in receipt of an average weekly wage of €730.00. The Complainant’s employment was terminated on the grounds of alleged gross misconduct on 25th January 2024.

On 29th January 2024, the Complainant referred the present complaint to the Commission. Herein, he alleged that his dismissal was both procedurally and substantively unfair. In particular, he alleged that the allegations made against him were not properly investigated and that the disciplinary process adopted by the Respondent was imposed as retaliation for making a complaint against an individual within the company. By response, the Respondent submitted that the Complainant was dismissed on foot of accepted misconduct on the part of the Complainant and that the sanction of dismissal was proportionate in the circumstances.

A hearing in relation to this matter was convened for, and finalized on, 3rd March 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing, said submissions were expanded upon and contested in the course of the hearing. No issue as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

In circumstances whereby no dispute arose as to the fact of the Complainant’s dismissal, the Respondent accepted the consequent burden of proof imposed by the Act and presented their case first.

By submission the Respondent stated that the Complainant’s employment commenced on 30th May 2022. At all relevant times, the Complainant’s role was described as that of “Mechanical Assembler”.

On 2nd January 2024, a colleague of the Complainant’s made a complaint to the Complainant’s line manager. This complaint alleged that the Complainant verbally threatened him in an aggressive manner while holding a spanner. On that same date an informal investigation meeting was convened between the Complainant, two members of management and a HR Manager.

On 5th January 2024, the Complainant was invited to a further meeting whereby he was informed that he was to be suspended on full pay pending a full investigation into the incident in question. On 9th January 2024, the Complainant was invited to a formal investigation. This invite included the terms of reference of said meeting and expressly provided for the Complainant’s right to be accompanied. During the meeting in question, it was put to the Complainant that he made a verbal threat a physical violence to a colleague while holding a spanner. It was further put to the Complainant that third party colleague had corroborated the account of the colleague that made the allegation. By response, while the Complainant accepted some of the account outlined by the witnesses, he denied the allegation that he physically threatened his colleague at any stage. Following this meeting all witness statements were issued to the Complainant and he was permitted a period time to comment on the same.

Following the expiration at the period of time reference above, the Complainant was invited to a disciplinary meeting in respect of these issues. During this meeting, the Complainant made certain concessions in respect to his conduct on the date in question, in particular stating that he snapped and confronted his colleague in relation to certain issues that had arisen. Nonetheless, the Complainant maintained that he did not threaten the colleague in question.

On 25th January 2024, the Respondent issued the outcome in respect of this disciplinary process.  This outcome found that the witnesses in question provided a clear and consistent account of the Complainant’s actions on that day. While it was noted that the Complainant denied that he made the threat in question, in circumstances whereby the Respondent had sight of two witness statements, one from the person that made the allegation and one from an independent witness, they held, on the balance of probabilities, that the Complainant committed the misconduct alleged. Given the seriousness of the allegation, the Respondent concluded that they no longer had trust and confidence in the Complainant and that the only appropriate sanction was the dismissal of the Complainant.

The Complainant exercised his right to appeal in accordance with the Respondent’s internal procedures and as expressly provided for in the dismissal correspondence. While the meeting was re-scheduled on the Complainant’s instruction, the Complainant did not attend the meeting for this purpose and did not issue a submission in respect of the same. In such circumstances, the Complainant’s appeal failed, and the sanction of dismissal was deemed to stand.

During the disciplinary process, the Complainant issued a grievance in respect of certain matters that had arisen. This grievance related to the conduct of the party that issued the initial complaint and a colleague (not the third party colleague that corroborate the initial statement). While the content of this grievance was separate from the matters that led to the Complainant’ dismissal, the same was upheld and the parties implicated in the same were subject to disciplinary proceedings themselves.

By submission, the Respondent stated that the dismissal of the Complainant on the grounds of misconduct was both procedurally and substantively fair. They submitted that the misconduct in question was determined on the balance of probabilities following receipt of two witness statements in respect of the same. They further submitted that given the nature of the misconduct in question, the dismissal of the Complainant clearly fell within the band of reasonable responses open to the Respondent.

Having regard to the foregoing, the Respondent submitted that the dismissal of the Complainant should be deemed to be fair for the purposes of the impleaded Act and that the Complainant’s application should fail.  

In evidence, the Complainant stated that his dismissal was both procedurally and substantively unfair for the purposes of the impleaded Act.

In this respect, the Complainant stated that he was the subject of ongoing abusive remarks by two of his colleagues. The Complainant made an informal complaint to the Respondent’s HR function in December 2023 in respect to the conduct of these two individuals, however the Complainant observed no change in the behaviour of these persons, and he continued to be the subject of the unwanted, abusive remarks.

On 19th December 2023, one of the colleagues in question sought to intimidate the Complainant in the Respondent’s carpark. Following this incident, the Complainant had resolved to make a formal complaint regarding these individuals after the Christmas break. On the parties return to employment in the new year, the colleague in question made a spurious and false complaint regarding the conduct of the Complainant. In evidence, the Complainant stated that, in his view, the sole purpose of this complaint was to discredit the Complainant and divert attention from the complaint the Complainant intended to make.

During the investigation process, the Complainant steadfastly denied the allegation that was put to him throughout the process. Again in evidence, the Complainant absolutely denied that he made a verbal threat of physical violence while holding a spanner. While the Complainant accepted that a third party witness provided a statement contradicting his version of events, he stated that the parties had corroborated their accounts and he cast doubt of the veracity of the statement in question.

During the process, in an effort to clarify matters, the Complainant issued a grievance in respect of the conduct of the colleagues in question. When the Complainant attended the meeting convened for this purpose, he was dismayed to discover that the same was being chaired by the father of the independent witness in his disciplinary matter. In such circumstances, the Complainant formed the view that he would not receive a fair hearing from the Respondent in respect to these matters.

The Complainant accepted that he did not attend the appeal meeting in respect of the disciplinary outcome. In this respect, the stated that at this point he had lost faith in the Respondent’s ability to properly investigate these matters and elected to pursue the present complaint instead.

By submission, the Complainant stated that he simply not guilty of the misconduct alleged. He stated that the originating allegation was issued as a means of preventing him from complaining about the person in question. In addition to the foregoing, he submitted that his complaints, both in December 2023 and in January 2024, were effectively ignored, while the complaints against him were treated as extremely serious and resulted in his dismissal. Finally, he submitted that the process was fundamentally defective in that his allegations were heard by a person that was intrinsically linked to the allegations against him. In these circumstances, the Complainant submitted that his dismissal was fundamentally unfair, and that his application should succeed.

Regarding the present case, the Respondent submitted that the Complainant was fairly dismissed on the grounds of gross misconduct. The Respondent submitted that said misconduct was determined following a comprehensive investigation process, during which the Complainant accepted many of the allegations put to him. They further submitted that given the gravity of the misconduct and the nature of the Respondent’s activities, the sanction of dismissal was proportionate in the circumstances. By response, the Complainant denied that the allegations against him were proved in any material fashion. He stated that the allegations in question  were issued on a tactical basis to prevent or detract from allegations that he himself intended to bring shortly thereafter. He further submitted that his own set of allegations were effectively ignored and were not properly investigated by the Respondent. Finally, the Complainant submitted that the procedure adopted by the Respondent was defective in that the person assigned to hear his grievance had a close familial relationship to a person involved in the grievance procedure.

In this regard, Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose 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) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

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…with the procedure…or with the provisions of any code of practice….”.

The matter of Noritake (Irl) Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

Regarding the agreed factual matrix presented by the parties, it is accepted that the Respondent received an allegation of serious misconduct on the part of the Complainant. Following the same, the Respondent was obligated to engage in an investigatory process in relation to the matters alleged. During this process, while the Complainant accepted that he “snapped” on the date in question, he denied the substantive complaint, being that he verbally threatened a colleague while holding a spanner. During the investigatory process in relation to the same, a witness statement was collected from a third party that corroborated the accuser’s version of events, while contracting that of the Complainant. The position of the Complainant in this regard was that that these two persons were acting in concert, in an effort to discredit him and ultimately remove him from the workplace. While this could potentially be the case, the first part of the test outlined in Noritake (quoted above) relates to whether the Respondent believed, on reasonable grounds, that the Complainant misconducted himself as alleged. Given that the Respondent in this matter had received an allegation that was corroborated by a third party, it is apparent that there is a reasonable basis for their belief, particularly with the application of the balance of probabilities test.

Thereafter, following the completion of an internal disciplinary process, the Respondent imposed the sanction of dismissal in respect of the misconduct alleged. By submission, the Complainant stated that this sanction was disproportionate given his length of service and that fact that it was his first sanction of any description.

In this regard, the test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

In evidence, the Respondent stated that the decision to dismiss was influenced by the fact that there was a threat of physical violence on the part of the Complainant. They further submitted that in circumstances whereby the Respondent operated in a manufacturing environment and the Complainant was holding a tool that may have been used as a weapon at the relevant time, the sanction of dismissal fell within the band of reasonable responses open to them. While the case certainly could be made that the dismissal of the Complainant was a harsh outcome in these circumstances, it is apparent that the actions of the Respondent in this regard were not unreasonable, and the sanction of dismissal fell within the band of reasonable responses open to them.

In evidence, the Complainant drew a distinction between the seriousness with which the complaints made against him were considered and the Respondent’s apparent failure to investigate the allegations raised by him before during and before the process. While it is apparent that the Complainant complained to the Respondent prior to the invocation of the procedure, this was by way of an informal complaint which would not normally result in disciplinary sanctions for the persons concerned. During the disciplinary process itself, the Complainant raised further complaints regarding the conduct of persons in question. While the Complainant attended a meeting convened for this purpose, he was dismayed to discover that that same was being chaired by an individual with a close familial connection to the person that corroborated the allegation against him. In evidence, the Complainant stated that this development served to undermine his faith in the procedure the Respondent’s ability or willingness to investigate the complaints raised by him.

In answer to a question posed by the Adjudicator, the Respondent accepted that they were a large organisation and had numerous managers that might have chaired this grievance meeting. In these circumstances, the appointment of a person that has a close connection to an important witness in the parallel disciplinary matter cannot be seen as anything other than a procedural flaw. Even if this person was not guilty of any form of bias against the Complainant, it if far from unreasonable for the Complainant to form the view that they would be guilty of the same.

In the matter of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, the High Court held as follows,

"…the authorities ... make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee's employment and the circumstances surrounding the disciplinary action…The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result”.

The first point to note in relation to the procedural defect in question was that it related to the investigation of the grievance raised by the Complainant as opposed to the disciplinary procedure adopted in relation to the complaints against him. In this respect, the defect in question does not impact upon the basis or rationale of the decision to dismiss the Complainant. In these circumstances I find that while the Complainant is correct in his submission that his grievance meeting should not have been chaired by the person appointed by the Respondent, this defect did not serve to render his dismissal unfair for the purposes of the Act.

In consideration of the accumulation of the forgoing points, I find that the Complainant was not unfairly dismissed by the Respondent, and his application fails.

I find that the Complainant was not unfairly dismissed by the Respondent, and his application fails.

Dismissal, Band of Reasonable Responses, Procedural Defect