EAT upholds dismissal of employee for misconduct

Smurfit Kappa dismissed an employee due to an altercation in the workplace in May 2013.  In a decision published last month, the Employment Appeals Tribunal (“EAT”) found that the dismissal was justified in the circumstances and the claim for unfair dismissal therefore failed.

By way of brief background, the employee commenced employment as a general operative on 25 May 2007.  On 23 May 2013, the employee and his brother were just finished their shift when an altercation occurred with a colleague (the senior shop steward), known as JMcG.  There was a conflict of evidence in relation to the incident itself, with the respective parties complaining about each other’s aggressive behaviour.  However, the claimant did acknowledge that his conduct was unacceptable in the workplace.  An investigation was carried out and it was found that a serious argument had occurred.  It was also found that JMcG had attempted to disengage from the argument, however both the employee and his brother refused to do so.

The general manager conducted a disciplinary hearing which commenced in July 2013.  Critically, the employee was provided with all relevant documents and had an opportunity to cross-examine the witnesses in accordance with fair procedures.  The employee was ultimately dismissed in October 2013.  In determining the appropriate sanction, the general manager also took into account that the employee had been involved in a similar verbal altercation in May 2012 and he had also been issued with a written warning in November 2012.  The incident in May 2013 was therefore the third incident over a 12 month period.  The employee appealed his dismissal and the sanction was upheld following an appeal hearing in December 2013.

The EAT found that the dismissal was not unfair and that it was “within the band of reasonableness for an employer to terminate an employee” in the circumstances.  The EAT also appears to have been influenced by safety considerations due to the nature of the working environment.  The employee’s brother was not dismissed as a result of the altercation and the EAT accepted that the differential treatment was justified due to the employee’s prior written warning for verbal aggression.