Man accused of grabbing colleague by throat and using homophobic slur loses unfair dismissal case
Workplace Relations Commission
(WRC).
Seamus Behan lost his job of 12 years as a van driver for Liberties Recycling Development and Training CLG in February of last year following the altercation with another worker just before Christmas 2023.
At a hearing of Mr Behan's complaint under the Unfair Dismissals Act 2014, Liberties Recycling told the WRC his behaviour on December 20th, 2023 amounted to gross misconduct.
The company said the finding was arrived at after what it described as a fair investigation and disciplinary process.
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Company manager Adam Moloney said 'multiple' statements from staff recounted 'off the charts' behaviour from Mr Behan towards the other worker, Mr A.
Mr Moloney said workers told him Mr Behan was 'verbally abusive, behaving aggressively, and damaged company property' during the incident.
He said it 'wasn't clear' from the statements what had first happened other than that the two men 'pushed each other'.
Mr Moloney said Mr Behan was at reception in the depot 'shouting abuse' at Mr A, would not leave when asked and 'kept trying to go at him'.
Management tried to persuade gardaí to come, but there was no response by closing time. A duty manager suspended Mr Behan and Mr A and sent them away via separate exits.
The complainant's representative, Thomas Behan, argued that witness statements had been 'handpicked' to support a case that his client was 'violent' and that CCTV had been 'purposely left out' of the investigation.
The company said any footage of the incident was taped over during the Christmas break, so it was not available when the investigation began in the new year.
The tribunal was told the row followed a complaint made by Mr A about Mr Behan's alleged conduct towards him six days earlier. It was alleged the complainant on that occasion grabbed Mr A's hand and squeezed until Mr A asked him to let go. Mr Behan then turned to another worker and allegedly said: 'Watch how I shake a real man's hand.'
Mr Behan said he knew nothing of this informal complaint until after the incident on December 20th, with his representative arguing any difficulties between the men ought to have been addressed sooner by management.
Mr Behan said Mr A was 'an hour late' returning with a van for a shift handover on December 20th and he was 'in a hurry to get out' so as to avoid working late without pay.
'I went to your man ... he was just numb about everything. Because I didn't know anything about the 14th, I was at the van, and he was at the van. He started mumbling stuff about something, and then he got aggressive towards me,' he said.
'This guy pursued me, I went away from the van, he's aggressive, in my face, spitting in my face,' Mr Behan said, adding that the spitting was not 'intentional'.
'He's giving me lackery about Pope John Paul, lackery about my religion. He deeply upset me,' he said.
The complainant said he 'wouldn't repeat' his colleague's remarks during the disciplinary process that followed because it was 'filthy' and 'vulgar' language.
Mr Behan denied using a slur toward Mr A in the course of the altercation, as had been indicated in statements gathered by the company. 'I don't even use the word 'f****t',' he said. 'Everyone's twisting and turning statements.'
He said a female supervisor was standing between him and Mr A, so it would have been 'impossible for me to grab the man by the neck'.
He told the tribunal Mr A pushed him as the altercation continued and that the CCTV footage 'would prove that as well'.
He said he was 'well warmed up' by his colleague by the time he reached the office.
'I raised my voice. Is that a sacking offence?' he said. 'No one wanted to investigate my statement ... My statement is the truth, on my religious beliefs.'
In her decision, WRC adjudicator Eileen Campbell stated: 'Taking all the circumstances into account I find, as a matter of probability, the complainant's actions on the day and his behaviour on the day to be aggressive, uncontrolled and unacceptable.'
She added that, on balance, the company's version of events was 'more convincing than that of the complainant' and there were 'substantial grounds' justifying Mr Behan's dismissal.
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