Case Number: ADJ-00010669. Workplace Relations Commission

• Court: Workplace Relations Commission
• Judgment Date: 01 May 2018
• Docket Number: ADJ-00010669
• Parties: An employee v An employer

ADJUDICATION OFFICER DECISION/RECOMMENDATION Adjudication Reference: ADJ-00010669 Parties:

	Complainant	Respondent
Anonymised Parties	An employee	An employer

Representatives Barnaba Dorda SIPTU Conor O’Gorman, IBEC.

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-00014153-001	22/09/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00014153-002	22/09/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00014153-003	22/09/2017

Date of Adjudication Hearing : 11/04/2018

Workplace Relations Commission Adjudication Officer : Jim Dolan

Procedure:

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

Background:

The Complainant commenced employment with the Respondent on 28/06/2008, he was employed as a cleaner in the Respondent’s warehouse operation. Following an altercation with a fellow employee the Complainant was dismissed from his employment on 21/07/2017. At the time of dismissal, the Complainant was receiving a net weekly payment of €456.00 per week.

Summary of Respondent’s Case:

On 29 June 2017, it was alleged that the Claimant was engaged in a physical altercation with a colleague. More specifically it was alleged that the Claimant threw a full 2 litre carton of milk at the colleague, when this missed the colleague due to the colleague ducking, the Claimant ran up to the colleague and tried to grab and attack him. Immediately following the alleged incident, the Claimant was called to a meeting with the Operations Manager. At this meeting the Claimant was advised of the serious allegations that had been made against him. He was advised that an investigation would take place and that if the allegations were upheld then it could amount to a finding of gross misconduct. Given the nature of the allegations the Respondent concluded that it was appropriate to suspend the Claimant on full pay pending the outcome of the investigation. Another Operations Manager, was appointed to investigate the allegation and the Claimant was advised that a meeting would take place on 3 July 2017. The foregoing (along with other procedural issues pertaining to the process) was communicated to the Claimant by letter of the same date. The Company operates a comprehensive disciplinary procedure which allows for suspension with pay, the right to representation as per S.I. 146 of 2000 and specifies examples of dismissible offences including “Disorderly or indecent conduct or fighting/physical assault." The investigation meeting with the Claimant took place on 3 July, 2017. The Claimant was accompanied at this meeting by an Employee Representative. Prior to this meeting the Claimant was provided with: (a) The company's disciplinary policy; (b) statement from his supervisor (c) statement from his intended victim (d) CCTV footage of the incident. The investigators produced a report on 6 July 2017. The Report concluded that: “The Complainant threw a 2 litre plastic bottle of milk at a colleague, on 29th June 2017. The Complainant attempted to strike a colleague, on 29th June 2017. The Complainant did not report any work pressure to a manager. The Complainant did not report any alleged name calling or treatment of a similar nature to a manager either on or previous to the date of the incident. The Complainant did not report any alleged previous threat to a manager and could not recollect the colleague’s name and does not want to pursue this alleged threat. Disciplinary Hearing The Investigation Report was sent to the Supply Chain Manager. The Supply Chain Manager reviewed the report and invited the Claimant to a disciplinary hearing on 13 July 2017. The Supply Chain Manager also advised that he could be accompanied at this meeting by a member of the HR team as notetaker. The Complainant was accompanied at this meeting by his Employee Representative. At the hearing the following was put forward by the Complainant:

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