The claimant was employed as a firefighter in 2006 until he was dismissed in October 2018. In March 2017 the claimant was promoted to the Learning and Development Centre where he would be a training instructor for new recruits as well as already qualified firefighters. Jacinta Russell, a colleague with whom the claimant had a romantic relationship with, was also promoted to the Learning and Development Centre at the same time.  It must be noted that this relationship had ended with the Tribunal citing that it was ‘amicable’.

The issue that led to the dismissal of the claimant came on foot of a decision to have increased uniform inspections of the trainees.  Ms Russell was annoyed at this as she thought that it was unfair on the trainees.   There was a dispute between Ms Russell and the claimant where the claimant was subject to foul language from Ms Russell.  This argument continued throughout the day with suggestions that such language should not be used in front of the trainees.  This culminated in evidence from the Watch Commander O’Prey that the claimant was walking quickly in front of Ms Russell and she had to run to keep up with him.   Whilst he could not hear what was being said, he could see that there was a disagreement.   Ms Russell was then seen to fall to the ground with Mr O’Prey stating that it was as a result of the claimant pushing or ‘swiping’ her.  Ms Russell’s suggestion was that she had been pushed in the back with both hands, she scalded her hands as her tea had spilt and when she got up she was pushed in the face by the claimant.   There was a clear difference between the accounts from Ms Russell and Mr O’Prey, the witness.  Indeed, Mr O’Prey stated that there would not have been enough time for the claimant to have pushed Ms Russell again.

Ms Russell made a complaint to the PSNI, but this did not lead to a prosecution.  The claimant stated that Ms Russell had been aggressive and intimidating which led to unwanted contact in his personal space.  He was also worried that Ms Russell could have used the hot drink in her hand against him at that point.  The claimant’s view was that Ms Russell had merely come into contact with this natural walking arm-swing, although he initially said he used his arm to brush her aside.

In the disciplinary process the claimant outlined his regret at the situation occurring but stated that he had been subjected to aggressive behaviour.   The decision was made to dismiss the Claimant on the basis of gross misconduct.  On appeal, the claimant outlined five other cases which involved situations of physical contact or threats where only final warnings had been given.  The appeal panel regarded them as not being the same and for that reason upheld the decision to summarily dismiss the claimant.

The Tribunal found that the appeal panel’s decision in stating that the comparator cases were not compelling was somewhat flawed.  There was a failure to detail the mitigating circumstances in the claimant’s case.  There was also an improper analysis of the alternative sanctions that could have been imposed.  The Tribunal was also critical of the ‘binary’ mindset that had been applied by the disciplinary panels where it was assumed that there had to be one victim and one culprit. This was clear with the fact that the behaviour and bad language of Ms Russell was treated informally which was of some concern to the Tribunal.  For this reason, the decision to dismiss was regarded as being unfair.  The claimant sought reinstatement and was awarded such, alongside financial compensation.

Practical Lessons

This case demonstrates the evidential difficulties that can be faced not only by the Tribunal but also the disciplinary panels.  The Tribunal is stating that the approach and the assumptions made by the panel were such that it made the decision unfair.  For this reason, those involved in disciplinary and dismissal decisions should be cognisant of having no preconceptions about the need to find right and wrong or to accept one account to reject another.   Trying to piece the story together in this case was difficult with issues as to who had sworn, what was exactly said and what physical altercation had occurred.  The decision must be based upon all evidence gathered and employers are reminded of the importance of both consistency and consideration of all mitigating factors when contemplating dismissal.