Two employees, same incident, same investigation, both dismissed, one was fair and the other unfair costing €65,000. How so?
- Posted by Bernadette
- On July 21, 2013
- Disciplinary Process, Fair Procedures
Carton Brothers is a well-known chicken processor in Cavan. As knives are among the tools used on the factory floor unsurprisingly the company has a zero tolerance in respect of violence in the workplace. An incident occurred in October 2010 involving two employees. They were both suspended pending investigation and both attended meetings with the Production Manager the following morning. Statements were taken from a variety of employees, union representatives and supervisors who were on duty on the evening of the incident or involved the following morning. Both employees took claims for unfair dismissal to the EAT. The first was found to be fair. The second, the subject of this report, was found to be unfair and the claimant was awarded €65,000.
It became apparent that one employee, a supervisor, had made first physical contact with the second employee who struggled to escape and may have struck the first employee in the process. The dismissal of this second employee was found to be unfair in the EAT decision UD835/2011. The Tribunal described the case as follow: “The respondent had to deal with a physical altercation between the claimant and a supervisor (D). After investigating the matter the company decided that both parties were equally culpable and in keeping with its “zero tolerance” approach to violence in the workplace both employees were dismissed.”
The Tribunal usefully summarised its approach to dismissals for “conduct” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978. The Tribunal applies the test of reasonableness to
- the nature and extent of the investigation carried out by the respondent prior to the decision to dismiss the claimant, and,
- whether the procedures adopted were fair and reasonable and
- the reasonableness of the conclusion arrived at by the respondent.
The Tribunal proceeded to look at the facts of the case under those 3 three headings.
1. The Investigation
The Tribunal states categorically that in all cases of dismissal for conduct an investigation, determined by the facts of the particular case, conducted by the employer is required. The tribunal listed four conditions that must be satisfied in any such investigation and these are mainly in line with the requirements included in the various codes of practice. The investigation in this case was found to be reasonably thorough but the Tribunal was not satisfied that it was approached with an open mind because not everything that might reasonably have had a bearing on the decision to dismiss was taken into account. The employer was found to have a pre-conceived notion that because there was a physical altercation there could be only one outcome – dismiss both protagonists.
2. Fair Procedures
The Tribunal found that evidence was not taken account of in respect of whether the claimant had sufficient understanding of the very serious position he found himself in. He was also apparently distraught.
3. The Reasonableness of the Conclusion
While the employer’s process was found wanting in both of the previous two headings, this is the one that exercised the Tribunal the most. The Tribunal listed 8 facts or pieces of evidence relevant to this particular case that the employer, if acting as a reasonable employer, should have taken account of. They included previous bad relations between the two protagonists, the various witness statements, that the supervisor protagonist accepted he was the aggressor, and that none of the witnesses placed the blame for the incident on the second employee.
The Tribunal could “not see how an investigation, taking statements as outlined above into consideration, can come to the conclusion that the claimant was anything other than a victim of bullying and assault. Taken to its logical conclusion any employee who suffers and assault, and who understandably fends off the blows and in the process makes physical contact with the aggressor, is deemed equally guilty and should also be dismissed is harsh unreasonable and manifestly unfair.”
The Tribunal went on:
Zero Tolerance policy in relation to violence/fighting in the workplace is understandable, appropriate and entirely reasonable in any work place and is even more understandabe in a work environment with ready access to knives…..While the investigation could be deemed to be adequate the conclusions reached by the respondent were not and could be considered perverse.”
In other words the punishment, dismissal, did not fit the ‘crime’.
What can be learned from this Decision:
- Even a good investigation can be insufficient if the consideration given to the information collected is not appropriate or if a relevant piece of information is not included. Learning to take account of all of the information available and identifying what is important is a skill to be developed.
- Zero tolerance situations are perfectly acceptable where appropriate but it is not a weapon to dismiss everyone involved. Where you intend to use zero tolerance, and particularly when applying disciplinary procedures, your managers should be trained to understand how to apply it. This case is a good example of where the same incident and the same investigation can and should result in different actions for those involved even in a zero tolerance situation
- Account should be taken of any distress being displayed by an employee in these circumstances. Consideration should be given to any possible inability to fully engage, for example because of language or intellectual difficulties
- This Decision underlines that there is no one list that can be ticked off in respect of workplace investigations. The various requirements will change depending on the circumstances of each case.
Beo Solutions conducts workplace investigations in accordance with best practice and the relevant codes of practice. Before the modus operandi of any investigation is decided upon the circumstances of the case are ascertained. As soon as is practicable the terms of reference for the investigation are completed and agreed with the client. The end result is a report including a reasoned decision based on the totality of the evidence presented. For each impugned incident there will be a conclusion as to whether or not:
- The incident was found to have happened,
- The incident and behaviour complained of could constitute the behaviour alleged,and finally
- The allegations are upheld.
Multiple complainant and multiple respondent investigations are our specialty taking account of the complexities that reports in such circumstances require. In addition, our knowledge of equality issues feeds into the performance of every investigation.