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Unfair Dismissal and Reinstatement due to disproportionate sanction

In Weveron Da Silva v Kepak  the Claimant was employed by the Respondent from 2002 to 2010 and was dismissed for abusive objectionable and threatening behaviour towards his manager. A subsequent investigation was undertaken by a Human Resouces supervisor on foot of an email received by him stating that the Claimant had been suspended for abusive language and improper behaviour towards a manager in August 2010. Statements were taken from the manager and a witness to the incident as well as the Claimant. The Claimant admitted that he called the manager a moron but denied using bad language.

The Claimant was invited to a disciplinary hearing and told to take note that the company considered it a serious offence and was it was listed as gross misconduct tin the company handbook and could result in disciplinary action up to and including dismissal.

The human resources manager became directly involved as a replacement for a colleague that was listed to hear a disciplinary meeting into the Claimant’s reported behaviour towards his direct manager on 23 August 2010. By that stage a human resources supervisor who conducted an investigation into that behaviour concluded that the Claimant’s misbehaviour amounted to gross misconduct. The human resources manager met and interviewed the Claimant on 3 September 2010 at the initial disciplinary hearing.  At a reconvened disciplinary meeting three days later the Claimant consented to attend the clinic of the Respondent’s occupational health consultant.

The occupational health consultant stated, among other things, that it would be advantageous for the Claimant and his direct manager to meet for mediation purposes. The doctor also stated that the Claimant was fit to return to work. A copy of the report was not given to the Claimant as part of the disciplinary process. A reconvened disciplinary hearing took place on 20th September and following an adjournment the witness decided that the appropriate sanction was dismissal.

Due to the Claimant’s behaviour towards the end of that meeting the Claimant was not explicitly informed of that outcome. However, it was clear that he was aware of it. That decision was formally relayed and confirmed in writing on 23rd September.

The Respondent did not consider using a mediation process in addressing the issue and conducted the disciplinary process solely in the light of an investigation report.


The Tribunal found that the dismissal of the Claimant was, in all of the circumstances, unfair and that the procedures adopted by the Respondent were not even-handed. The Tribunal noted that it was admitted in evidence by the HR Supervisor that he had considered conversations that he held with colleagues, and that they were not noted and shared with the Claimant, in his decision to have the Claimant disciplined.

  • There was no explained basis for finding, at the initial investigation stage, that the Claimant had been threatening in his behaviour.
  • The classification by the HR Supervisor of the incident as gross misconduct was not reasonable in all of the circumstances.
  • It was not stated by the HR Supervisor in his letter of 1 September 2010 what the “abusive and offensive” language was.
  • It was never established during the procedure that the Claimant had actually cursed at the manager.
  • The proceedings steps of the disciplinary procedure were not proper either. On the notes of the company from the meeting of 3th September 2009, the Claimant apologised for calling the manager a moron, yet it was repeatedly put to him in the reconvened meeting with the same parties that he had never apologised.
  • The Claimant was sent to a Medical Occupational Health Consultant as the Respondent had expressed concern about his behaviour. The report of that doctor found that the Claimant was fit to return to work and was not a danger to himself or others. The report was not shared with the Claimant, though at the reconvened disciplinary meeting, he was questioned by the Respondent on the veracity of details he provided to the doctor and asked what the doctor’s view of what the Claimant told him.
  • The report’s recommendations in relation to the Claimant and his manager that there would be mediation was ignored by the Respondent.
  • On foot of the Claimant not giving a reassurance that he would not have outbursts in future, which he stated he felt he could not give, coupled with the stated “seriousness of the issue,” the Claimant was terminated in his employment. The Tribunal also noted that the Respondent contained the Claimant in the disciplinary meeting, trying to tell him that he was going to be dismissed, and he had to ask repeatedly, on their own notes, to let him leave.

The Tribunal noted that for an isolated incident of the level complained of, termination was a disproportionate sanction in light of the other options available. Punishing the Claimant with dismissal for a possible future infraction where an occupational physician had stated that he was not a danger was likewise disproportionate and in all the circumstances unfair.

The Tribunal recommended that the Claimant be re-instated into his job as at the date of dismissal or a role of similar grade.

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