Case Number: ADJ-00000136. Workplace Relations Commission

• Docket Number: ADJ-00000136
• Hearing Date: 31 January 2017
• Date: 09 July 2018
• Court: Workplace Relations Commission
• Parties: A Painter V An Employer
• Respondent: An Employer

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00000136

Parties:

	Complainant	Respondent
Anonymised Parties	A Painter	An Employer

Representatives SIPTU Arthur Cox Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00000191-001	12/10/2015

Date of Adjudication Hearing: 31/01/2017 and 09/05/2017

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The respondent employed the complainant as a painter from November 2005 until his dismissal on the 1st of May 2015. He worked 37.5 hours per week and was paid in the region of €48,000 per annum. The parties made written and oral submission to the hearing.

Summary of Respondent’s Case:

The respondent submits that the complainant was dismissed for gross misconduct and the termination of his employment following a thorough and fair process which observed his right to natural justice. He repeatedly breached the respondent’s Disciplinary Process and displayed a “clear lack of candour in his engagement with [the respondent] in relation to his conduct.” Specifically, a report was received by HR on the 10th of March 2015 concerning three incidents (including physical altercations/fights) which had occurred on the previous day between the complainant and a colleague. The accounts provided to the investigation officer indicated that there were three physical altercations/fights between the complainant and a colleague at 3pm, 6:50pm and 7pm on the 9th of March 2015. The complainant was on sick leave arising from an injury to his finger (fracture) at this stage and was therefore one of the last people to be interviewed in the investigation process. During his interview on the 24th of March he denied fighting with his colleague on the 9th inst., he denied being involved in any physical altercation nor could he confirm that any witnesses were present for the alleged altercations as he had been at his workplace for the entire time. On being questioned in relation to the injury to his finger he denied that it had occurred due to any altercation with his colleague and described it as an accident at work. The incident report refers to the statement of the chargehand and the admissions of the implicated colleague as providing best evidence in the absence of CCTV. The author concluded that the relevant information was being withheld by the 6 witnesses who were interviewed but noted that it was confirmed by them that there was shouting and that “a number of scuffles” had taken place which resulted in the implicated colleague ending up on the floor on two occasions. It refers to the fact that the complainant admits to an argument only at 3pm in the tea room and that he denies that anything else occurred between himself and his colleague on the day. The complainant was invited to attend at a disciplinary hearing based on the allegation that he was involved in three altercations/incidents of fighting on the 9th of March 2015 with his colleague and that he had falsely represented to the respondent that he had injured his finger in an accident at work. He was provided with all relevant documentation, advised of the gravity of the allegations, advised that if proven the behaviour would constitute gross misconduct and suspended from work from the 9th of April 2015 pending the outcome of the process. The disciplinary officer acted in the same capacity in relation to the complainant’s colleague arising from the same report. He met the complainant on the 21st of April 2015 and had met with his colleague earlier that day. During the earlier meeting the colleague alleged that the complainant had punched him in the canteen at 3pm on the 9th of March 2015. The disciplinary officer advised the complainant of that allegation prior to requesting his version of events. The complainant was initially reluctant to respond but eventually conceded that there had been a “physical argument between himself and [his colleague], during which they had pushed each other, and had ended up on the floor, with colleagues intervening to physically separate them.” He was asked whether or not this had caused the fracture to his finger. He said that it hadn’t. The complainant’s explanations were deemed unsatisfactory and it was determined that his behaviour amounted to gross misconduct in breach of the Disciplinary Policy. He was dismissed by letter of 1st of May 2015. An internal appeal of the dismissal was lodged on the basis that the finding in relation to his injury at work was flawed and that the sanction was excessive in circumstances where there had been provocation. The hearing was provided with a medical report in relation to his fractured finger. The appeals officer dismissed the appeal following consideration of all the matters raised. The complainant was so advised by letter of 1st of July 2015. It is submitted that the nature of the respondent’s business requires the strictest application of best practice rules relating to health and safety and does not in any circumstance allow for the behaviour engaged in by the complainant herein. The respondent operates a zero-tolerance policy in relation to fighting and has consistently applied this policy over the years. Provocation is not an issue as there were three separate breaches of policy. The complainant was less than forthcoming in the process which has led to an undermining of trust and confidence in the relationship. It is reasonable for the respondent to conclude that the injury to his finger arose from fighting and led to him being off work on sick leave. The report on the matter from the local general hospital is inconclusive in relation to how the injury was sustained.

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