Facts: This was an appeal by the Complainant, Mr Nicholas Folan, of a WRC decision that he had not been unfairly dismissed by the Respondent, Smurfit Kappa Ireland Ltd. The Complainant sought redress in the form of reinstatement.

The Complainant had been employed by the Respondent as a general operative from November 1999 until he was dismissed for gross misconduct in August 2018. In July 2018, he struck one of his colleagues in the face with an iron implement, causing significant facial laceration. An investigation was carried out and the investigation report concluded that the Complainant was guilty of gross misconduct. A disciplinary meeting took place on 20 August 2018 and a further disciplinary meeting was held on 31 August 2018 at which the disciplinary manager read out a letter dismissing the Complainant. The Complainant appealed his dismissal, but the dismissal was upheld.

Preliminary Issue: The Complainant sought anonymity from the Court on the basis that an alleged assault could have negative consequences for him. This was rejected by the Court which found that this did not constitute special circumstances such as would warrant the exercise of its discretion under section 44 of the Workplace Relations Act 2015.

Decision: The Labour Court noted that dismissal will in most circumstances be within the band of reasonable responses in circumstances where an employee has struck a colleague in the face with an implement, in the absence of corroborating evidence that this was done in self-defence.

However, the Court found that the Respondent did not follow fair procedures and for that reason, it found that the Complainant’s dismissal was unfair. In doing so, the Court referred to the importance of ensuring a clear distinction between the investigation and disciplinary stages of the process. It found that the investigator, in finding that the Complainant was guilty of gross misconduct, “over-stepped his role” which was to establish facts. The Court regarded this as an “unacceptable flaw in the entire process.” The Court also referred to the decision of the disciplinary manager to stage his own re-construction following receipt of the investigation report, which it described as “inexplicable” and a further example of the Respondent’s lack of understanding of the division in roles between the investigation and disciplinary stages.

The Court also found that the Complainant had not been afforded the opportunity to argue his case before a decision was made to dismiss him. It held that this was a breach of the Complainant’s right to natural justice. For these reasons, the Court concluded that the process had been fatally flawed and the dismissal was unfair.

Unsurprisingly, the Court found that reinstatement or re-engagement would not be appropriate remedies in the circumstances of this case. In assessing the appropriate level of compensation to be awarded, the Court noted that no evidence had been provided regarding the Complainant’s actual losses and as the Complainant decided not to give evidence at the hearing, he could not be questioned about his attempts to mitigate same. He was, at the time of the hearing, acting as a full-time Carer for his mother.

The Labour Court considered the uncontested fact that the Complainant struck a colleague in the face with an iron implement. Due to the lack of any evidence from the Complainant under oath to support his assertion of self-defence, it held that the Complainant had contributed 100% to his own dismissal and awarded zero compensation on that basis.

Takeaway for Employers: This case highlights the importance of fair procedures in any disciplinary process, regardless of the actions of the employee. This decision highlights the importance of defining the scope of a fact finding investigation and the employee’s right to be properly heard in the disciplinary process.  The decision not to award any compensation in this case was fact specific and based on a finding that the Complainant contributed entirely to his own dismissal. The decision of the Complainant not to give evidence at the Labour Court hearing seemed to have contributed to this decision.

Link  – https://www.workplacerelations.ie/en/cases/2021/september/udd2156.html

Authors – Jenny Wakely and Anne O’Connell

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