WRC upholds dismissal for spitting at work during Covid pandemic

Carey Glass says employee spat on ground when asked to maintain social distance

In his evidence at the WRC, Dariusz Swider stated that he did not mean to spit deliberately. He said that he has a sinus problem and there was nowhere else to spit. Photograph: Alan Betson

In his evidence at the WRC, Dariusz Swider stated that he did not mean to spit deliberately. He said that he has a sinus problem and there was nowhere else to spit. Photograph: Alan Betson

 

A worker put the health of his colleagues in danger when he spat at his Co Tipperary workplace in March, 2020, during the coronavirus pandemic, according to the Workplace Relations Commission (WRC) when dismissing a claim for unfair dismissal against Carey Glass.

The Nenagh glass processing company – which employs 450 people – summarily dismissed Dariusz Swider for gross misconduct on March 27th, 2020, a day after he was seen spitting on the ground as the company tried to maintain social distance at the turnstile clock-in clock-out gates.

Mr Swider had been employed as a commercial generative operative at the company since July 2005.

According to the company, at 4.05pm on March 26th, 2020, the firm’s health and safety officer (HSO) noticed Mr Swider getting very close to the person in front of him and he called out to Mr Swider to remind him to keep a safe distance.

Witnesses

The HSO said that Mr Swider did not step back when requested but turned his head towards the HSO and spat on the ground.

According to Carey Glass, this was confirmed by five witnesses in their statements. The HSO called out to Mr Swider again, said the company, but he continued to clock out and left.

At a disciplinary meeting on March 27th, the firm said that when questioned, Mr Swider denied spitting on the ground “and he showed no remorse whatsoever and a total lack of understanding for the seriousness of his behaviour”.

WRC adjudicator Gaye Cunningham found that given the circumstances at the time of March 26th, 2020, Carey Glass acted as a reasonable employer would in summarily dismissing Mr Swider “in a situation where he put the health of others in the workplace in danger”.

Ms Cunningham also found that Mr Swider by his behaviour and attitude left Carey Glass “with no other option but to dismiss him on the grounds of gross misconduct. There is a responsibility on employees to comply in the interests of the health and safety of all in the workplace.

“The period during which the incident occurred was a most difficult challenging time, when the entire country and wider world was in a fearful grip of Covid-19.”

‘Life-threatening virus’

Carey Glass told the WRC that during the time of late March 2020 “we were terrorised – and still are – by a life-threatening virus sweeping the world”.

Carey Glass said that the dismissal was fair “as there were substantial grounds, due to the conduct of the employee, justifying the dismissal on grounds of gross misconduct”.

The company said that it was also deeply concerning that during one meeting, Mr Swider allegedly stated, “this is just another unimportant thing.”

At the WRC, the firm’s domestic director said he told Mr Swider that this was “extremely important and your response shows your attitude on Covid-19” .

However, a Government stay-at-home order delayed the dismissal letter being issued and it was sent out on July 7th, 2020.

In his evidence at the WRC, Mr Swider stated that what he did was misinterpreted.

He stated that he meant no disrespect to the HSO.

He added that he was worried about his family and did not mean to spit deliberately. Mr Swider said that he has a sinus problem and there was nowhere else to spit.

He was aware of the Covid-19 signs but he was worried about his family.

Mr Swider said that he did not spit in the direction of the HSO and if the HSO felt he was disrespectful, he would apologise.

Mr Swider told the WRC that he does not remember saying that it was an “unimportant thing”.