Failure to conduct “open minded” and “full” investigation leads to award of €65,000

The case of Michael Morales v Carton Bros UD 835/2011 is interesting as it sets out in detail the steps required to carry out a proper and fair investigation where dismissal for conduct is an issue. The Tribunal also looked at fair procedures and whether the sanction imposed lay within the range of reasonable responses.Although the decision is over seven pages long it worth reading and noting the principles outlined.BackgroundThe Respondent in this case was a chicken processing and packing plant. A physical altercation occurred between the claimant and his supervisor and after investigating the matter the Respondent concluded that both parties were equally culpable and in keeping with its “zero tolerance” approach to violence in the workplace both employees were dismissed.DeterminationThe Tribunal noted the case of Hennessy v Read & Write Shop Limited 192/1978 which concerned cases related to dismissals for “conduct”. In determining whether the dismissal of the Claimant was fair the Tribunal applied the test of reasonableness to

1. the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the Claimant and
2. whether the procedures adopted were fair and reasonable and
3. the reasonableness of the conclusion arrived at by the Respondent

1. the investigationThe Tribunal noted that the onus was on the employer to show that the investigation was fair in the sense of being open-minded and full in the sense that no issue which might reasonably have a bearing on the decision was left unexplored. The Tribunal proceeded to outline a number of conditions which the employer must show in respect of the investigation, namely

• that the employee was aware of all allegations and complaints that formed the basis of the proposed dismissal
• that the employee had an adequate opportunity to deny the allegations or explain the circumstances of the incident before the decision to dismiss was taken. This includes a right to be represented in appropriate circumstances.
• that the evidence of witnesses of other involved parties was sought where the allegations were denied or the facts were in dispute and
• the right to be represented by a trade union official or a fellow employee

The Tribunal was not satisfied that the Respondents investigation was open-minded and full as required as it may not have taken everything into consideration that might reasonably have a bearing on the decision to dismiss.2. Fair ProceduresThe Tribunal looked at Section 6(1) of the Unfair Dismissal Act 1977 (as amended) which provides that a dismissal is deemed unfair unless there were substantial grounds justifying the dismissal. The Tribunal was not satisfied that the Respondent acted fairly and reasonably in his dealings with the Claimant and that the Claimant may not have had sufficient understanding of the serious position he found himself in.3. The reasonableness of the conclusionThe Tribunal noted that its role was not to establish an objective standard but to ask whether the decision to dismiss came within the band of reasonable responses an employer might take having regard to the particular circumstances of the case. The Tribunal also noted the case of Noritake (Ireland) Limited v Kenna UD 88/1983 where the Tribunal considered the evidence in light of three questions namely

• Did the company believe that the employee misconducted himself as alleged? If so,
• Did the company have “reasonable grounds to sustain the belief? If so,
• Was the penalty of dismissal proportionate to the alleged misconduct?

The Tribunal concluded that having investigated all the facts, the Respondent did not act as a reasonable employer would have acted. The Tribunal noted that the facts did not support the conclusion of the Respondent that both parties were equally culpable and the Respondent should have considered certain matters which emerged during the course of the investigation including the previous bad relations between the parties and awareness of previous bullying.The Tribunal noted that taken to its logical conclusion any employee who suffers an 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 further noted that a zero tolerance policy cannot be used as a mechanism for dismissing any employee involved in a physical confrontation without fully investigating the entire circumstances surrounding the incident.In determining whether the “punishment fits the crime” the Tribunal looked at the case of McGee v Peamount Hospital and noted therein “………the task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses”.The Tribunal is not satisfied that the action taken by the Respondent in dismissing the Claimant was supported by the facts and the decision to dismiss did not fall within the band of reasonableness expected. The Claimant was awarded €65,000.