Britvic has been ordered to take back a union shop steward with 24 years’ service at the firm after the Workplace Relations Commission (WRC) found there was “no evidence whatsoever” that he had thrown a punch in a factory gate altercation he was sacked over.
Anthony O’Brien secured the order under the Unfair Dismissals Act 1977 against Britvic Ireland Ltd to allow him to return to work two years to the week after a verbal row with a colleague at work spilt over and got “physical” on the street outside the firm’s west Dublin plant on May 12th, 2021.
It followed two earlier rows inside the plant with the other worker, referred to as Mr X in a published decision on the case, in which Mr O’Brien admitted using “industrial language”.
The WRC heard the second row, in a locker room, ended with Mr O’Brien telling the other worker: “Go ahead and you’ll be held accountable.”
At clocking-off time 15 minutes later, Mr O’Brien told the tribunal, Mr X shouted something to him as he passed in a car and then pulled up.
When Mr O’Brien went over, he said, to hear what Mr X was saying, the other worker then got out and “quickly approached” the complainant, “chesting” him.
They got into a grapple, during which Mr O’Brien said he was pushed to the ground.
Mr O’Brien said Mr X then “repeatedly” punched him.
The complainant said he considered himself to have been the victim of an assault by the other worker and “did not land a single blow” or “attempt to hurt [Mr X] in any way”.
Following an investigation, the firm summarily dismissed Mr O’Brien, who had worked at the firm for 24 years at that point, for “inappropriate behaviour” and “fighting” – along with Mr X.
Mr O’Brien, who had been a Siptu shop steward for 20 years at the time of the events, said it was his belief that his sacking was “directly related to his union activities”.
The firm made strong objections to any re-engagement or reinstatement of Mr O’Brien, taking the position that the complainant had made a “devious attempt to provoke [Mr X] into doing something”.
Fergus Dwyer of employers’ group Ibec, appearing for the company, said there had been an “attempt to nitpick CCTV stills” in the case by Mr O’Brien’s trade union representative, Dave Curran of Siptu, but that the “factual position” was that Mr O’Brien had taken up the stance of “a person about to be in a fight”.
This “destroyed the company’s trust and confidence and rendered the continuation of employment impossible”, Mr Dwyer said.
Mr Curran, who had asked a company witness to examine multiple stills from the CCTV footage, argued his client had been moving away.
Mr Curran said: “His evidence is that he was assaulted ... The only specific claim made [against my client] in any form was that the other employee [Mr X] said: ‘He [Mr O’Brien] came up behind me and swung a punch at me.’ We can see from the CCTV that didn’t happen.”
In his decision, adjudicating officer Breiffni O’Neill said there had been procedural unfairness in the firm’s investigation of the matter, as the precise allegations had never been put to the complainant and that “additional allegations” had been made when Mr O’Brien was put on notice of the disciplinary hearing.
Mr O’Neill said this was “very concerning from a procedural fairness point of view and indicative of a significant degree of prejudice” – adding that the company’s disciplinary officer, George Curley, had “reinvestigated the matter” without regard to the evidence gathered earlier.
He noted that Mr Curley had examined the CCTV footage and came to the view that Mr X had fallen because Mr O’Neill had pushed him.
“Incredibly, I note that this assertion was not put to complainant during the investigation process,” Mr O’Neill said, calling the finding “procedurally unfair as well as unreasonable”.
He said the sacking had been unfair both on the technical grounds of how the process was carried out and substantively unfair to Mr O’Brien.
“I do not accept that a reasonable employer would lose faith in an employee with 24 years’ service because he was verbally abusive to a colleague on one given day,” Mr O’Neill wrote in his decision, noting that “no training” had been given to staff around relevant elements of the firm’s dignity-at-work policy.
Mr O’Brien had only been “engaged in a physical altercation that was not started by him where there was no evidence whatsoever presented to suggest that he threw a punch”, the adjudicator added.
He said that with 110 staff working at the site, Britvic should be in a position to let Mr O’Brien get back to work “with little fuss or difficulty for the operation”.
“I cannot ignore that the complainant is now 61 years of age, and I accept his evidence that it is much more difficult to secure suitable work in a similar position,” he said.
He ordered the firm to put Mr O’Brien back to work in his previous role, with the order becoming effective on May 15th, 2023.
