In the recent Labour Court case of Starrus Eco Holdings Limited t/a Panda/Greenstar v Ben Madichie, Determination No. UDD2247, the Respondent (employer) appealed the decision of a WRC Adjudicator,
which had found the Complainant (employee) had been unfairly dismissed and awarded him €29,960.00. The Respondent’s appeal failed and the Labour Court increased the Complainant’s award to €40,000.00.
Facts:
The Complainant was employed by the Respondent as a driver from October 2017 until his dismissal in February, 2020.
The case focused to a large extent on an incident in the workplace on 26th November, 2019. On the said occasion there appears to have been some exchanges between the Complainant and his direct line manager about an issue concerning the windscreen wipers on the Complainant’s truck. According to the Respondent, on the evening in question instructions were given to the Complainant by his direct line manager to remove his truck from where he had parked it and bring it to a garage to have the wipers fixed. According to the Respondent, the Complainant did not do as the direct line manager had directed and a further exchange took place between them. It appears to be common case that the exchange became somewhat heated and strong language was used on both sides.
According to the Respondent, during the course of the exchange the direct line manager went to walk away and that the Complainant grabbed the arm of his jacket and pulled him back with some force. The evidence of the Complainant was that he touched the direct line manager on the hand.
Another issue in the case concerned absences on the part of the Complainant between the date of the above interaction and 23rd January, 2020. The Complainant claimed these absences related to the death of his father, while the Respondent claimed some of the absence was unauthorised.
In any event, it appears to be common case that upon the Complainant’s return to work, he was suspended.
The Respondent’s position was that it suspended the Complainant pending an investigation of gross misconduct and that the misconduct he was accused of was detailed as an assault on his direct line manager on 26th November, a refusal to take an order from his line manager that same day (i.e. the alleged direction to take his truck to the garage), verbal abuse of his line manager and being absent without leave from 29th November, 2019 to 6th December, 2019 and again from 2nd January to 22nd January, 2022. It is worth noting that the Labour Court specifically called out in its determination the fact that the decision to suspend the Complainant appears to have been made before the investigation took place.
According to the Respondent an investigation meeting took place between a manager “RD” and the Complainant on 24th January, 2020. RD did not produce a report of the investigation (something that was noted by the Labour Court) but shared notes of the meeting which the Complainant signed. On 28th January, 2020 another manager “PW” then wrote to the Complainant confirming he had decided to initiate a formal disciplinary procedure against him. In PW’s letter, he advised the Complainant that the allegations were a potential example of misconduct for example bringing the company name into disrepute; or gross misconduct, for example breach of confidence relating to the Company’s name. The Complainant was then invited to a disciplinary meeting before PW on 29th January, 2020.
According to the Complainant he tried to have a colleague accompany him to the disciplinary meeting with PW but PW told him he did not want to see the Complainant’s colleague/the colleague was not required. As a result the colleague did not attend the meeting.
According to the Respondent’s own account of events at the disciplinary meeting PW said to the Complainant “this incident where you grabbed Tommy and verbally abused goes so far across the line, it is totally unacceptable. If all staff members were allowed to ignore orders and have heated exchanges and lay hands on supervisors the company would be in anarchy. This will not be tolerated from any employee high or low.”
The Complainant argued that this statement amounted to evidence that PW had made a decision on the matter prior to the conclusion of the disciplinary hearing (a contention the Labour Court appeared to have agreed with).
The Complainant claimed PW never advised him he was at risk of losing his job and that PW shouted at him during the meeting.
According to the Respondent, following the disciplinary meeting PW took time to consider all elements of the disciplinary process and decided to impose the sanction of dismissal. The Complainant was informed of this by way of a letter on 3rd February. The dismissal letter confirmed that three allegations had been found proven as follows:
- That the Complainant had assaulted his line manager
- That he had refused an order from his manager to take his truck to the garage, and
- That he had verbally abused his line manager.
An appeal hearing took place before an individual referred to as “CN”. According to the Complainant he again asked a colleague to accompany him to that meeting but again he was informed CN did not want the colleague to be at the meeting so the colleague did not attend. CN upheld the decision to dismiss.
The Respondent contended that the process was fair and that the decision to dismiss the Complainant was reasonable in circumstances whereby his actions clearly met the requirements to be held as gross misconduct.
Decision:
The Labour Court made a number of criticisms of the Respondent’s approach and process and ultimately the Respondent’s appeal failed.
Among other things, the Court commented on the fact that the Respondent had viewed the physical interaction between the Complainant and his line manager as an assault by the Complainant. However, on the evidence of the Complainant and his line manager, the interaction amounted to contact by the Complainant with the sleeve of the manager’s coat or his hand which caused the manager to turn around towards the Complainant.
The Court paid particular attention to the Respondent’s own disciplinary procedure which made it clear that an Complainant will “not normally be dismissed for a first breach of discipline, except in the case of gross misconduct.” The Court observed that the Respondent’s handbook which sets out its disciplinary procedure also made a distinction between “major misconduct” and “gross misconduct” and identified assault as an example of “major misconduct” while identifying “physical assault” as “gross misconduct”.
The handbook advised that disciplinary action taken against an Complainant for “major misconduct” would be based on a staged procedure which in the event of a first occurrence of such misconduct would leave open the sanction of a written warning or a final written warning while the sanction identified for a first instance of “gross misconduct” was dismissal.
The Labour Court commented that it is clear according to the Respondent’s disciplinary procedure that assault can be viewed as “major misconduct” or “gross misconduct”. In this case the Respondent claimed the behaviour of the Complainant amounted to “gross misconduct”. The Labour Court was critical of the fact that neither decision maker at the disciplinary hearing or the appeal gave oral evidence at the hearing. Therefore, no evidence or submission was offered as to how the decision makers at first instance and on appeal decided that the particular physical interaction between the Complainant and his line manager amounted to an assault which could be regarded as of such significance as to amount, alone or in conjunction with other alleged misconduct to “ gross misconduct” rather than the lesser offence of “major misconduct”. There was also no evidence that a lesser sanction, other than dismissal, was considered.
The Labour Court accepted much of the Complainant’s evidence around flaws in the disciplinary process in circumstances where it was not contradicted either by submission or evidence on behalf of the Respondent.
Ultimately the Court concluded that:
- the Complainant had been invited to participate in an investigation and disciplinary procedure without having knowledge that his employment was at risk;
- the Complainant was prevented by PW and CN from being represented at both his disciplinary and appeal hearings, despite the fact that the disciplinary procedure of the Respondent makes provision for such representation;
- it was accepting the Complainant’s evidence that PW shouted at him in the course of the disciplinary hearing;
- it was significant that the record of the disciplinary hearing compiled by PW records PW articulating conclusions to the Complainant as regards the matters under consideration during rather than after the disciplinary hearing;
- there was a lack of consistency by the Respondent in addressing the language used by both the Complainant and his line manager during their interaction on 26th November 2019
- having regard to all of the above, the procedure engaged by the Respondent to address the events of 26th November, 2019 lacked the basic tenets of natural justice or fair procedure.
- the failure of the Respondent to proffer evidence from either the first decision maker or the decision maker on appeal, resulted in the Respondent being unable to discharge the burden of establishing that the decision to dismiss was proportionate to the alleged offence or that either decision maker considered any penalty other than dismissal.
For all of the above reasons the Court concluded that the Respondent had failed to discharge the burden resting upon it to establish that the dismissal was fair and, consequently, the Court concluded that the dismissal of the Complainant was unfair.
Increase in award to €40,000:
The Court noted the earnings of the Complainant prior to his dismissal had been agreed by the parties to have amounted to approximately €40,000.00 per annum. Having taken into account evidence from the Complainant regarding efforts to mitigate his loss at certain times since the dismissal and the absence of efforts to mitigate at other times since the dismissal, the Court took the view that an award of €40,000.00 was just and equitable in the circumstances and increased the award accordingly to that amount.
Takeaway for the Employers:
In order to uphold a dismissal on the basis of gross misconduct the employer will generally need to be able to show a very solid and fair reason for the dismissal, an impeccable procedure in the lead up to the dismissal and that genuine consideration was given to the proportionality of the sanction of dismissal as opposed to some lesser sanction. Evidence from the decision makers is essential to prove fair procedures took place.
Furthermore, inequity in treatment can really come against an employer in terms of the fairness of the dismissal. For example, where another employee has behaved in a similar manner without sanction this can present a significant issue for the employer in terms of defending a claim of unfair dismissal.
Authors – Laura Killelea and Anne O’Connell
30th September 2022