Worker fired over alleged racial abuse awarded €10,000 for unfair dismissal

A former worker in a Co Kerry builders’ yard who was fired after allegedly being racially abusive to a colleague has been awarded more than €10,000 after a ruling that his dismissal was unfair.

The Workplace Relations Commission (WRC) ordered Richard Boyle & Sons of Co Kerry, to pay a total of €10,340 in compensation to its former employee, Gerard Maunsell.

The WRC ruled that he had been unfairly dismissed as a result of a process that was “fundamentally flawed” from the outset.

It claimed the company’s predetermined sanction of dismissal was entirely disproportionate as Mr Maunsell, who had been subject to “appalling treatment”, had raised issues about the other party involved in the incident that had not been considered or investigated.

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The WRC also expressed “grave concern” about disputed evidence as to whether Mr Maunsell had apologised for his behaviour at a disciplinary meeting.

Mr Maunsell gave evidence that he had apologised for using abusive language but “they did not want to listen”.

He also disputed using some words but accepted he had remarked to his colleague: “F**k you, you f**king pr**k.”

Another colleague testified that a HR adviser to the company was trying to do “a hatchet job” on Mr Maunsell and tried to make him admit he was a racist when he was trying to apologise.

The WRC heard Mr Maunsell had worked at the store since April 2016 and was paid €540 for working a 40-hour week.

The firm’s general manager, Adrian Boyle, said he had received a complaint on November 12th, 2021 that Mr Maunsell allegedly told another staff member in the canteen: “You should go back to your own f**king country, you foreign c**t” before throwing a bottle of soap at his colleague.

Mr Boyle said three other employees had corroborated the allegations but Mr Maunsell “refused to acknowledge what he said” and was suspended.

Mr Boyle said he had purposely not put the complaint to Mr Maunsell at the meeting as he wanted to hear his version of events.

The WRC heard Mr Maunsell was invited to a disciplinary hearing to face allegations that he engaged in threats or acts of physical violence, immoral or indecent conduct, breaches of safety rules and alleged racial harassment.

Mr Boyle said he sacked Mr Maunsell for gross misconduct over his failure to respond to the allegations.

The WRC heard Mr Boyle was also involved in the decision to uphold an appeal to terminate Mr Maunsell’s employment in December 2021.

Mr Boyle said Mr Maunsell never apologised for the words allegedly used to his colleague but had apologised to the company.

Mr Maunsell’s solicitor, Terence O’Sullivan pointed out that notes from the meeting showed his client had apologised to the company “and all involved”.

Under cross-examination, Mr Boyle said none of the other witnesses to the incident had heard Mr Maunsell being called a “bigot” by his colleague as he had claimed.

The manager said he knew there had been previous issues between the two men but he had only acted when a formal complaint had been made.

Mr Boyle remarked that he could not believe racism “was at my doorstep.”

The company’s HR adviser, Damian McCarthy of HR Buddy, said he believed that Mr Maunsell “stonewalled” his questions about the incident and was deliberately avoiding responding to the allegation.

Mr McCarthy claimed there might have been a different outcome to the case if Mr Maunsell had admitted to the allegations and apologised.

The HR adviser said Mr Maunsell had given “some sort of very watery attempt of an apology”.

In its ruling the WRC said it was concerned that Mr Maunsell had been called to a meeting with Mr Boyle without prior notice of what it was about or having a representative with him.

However, WRC adjudicator Úna Glazier-Farmer said she was most concerned that the specific allegation was not put to Mr Maunsell and that he was not given an opportunity to respond.

Ms Glazier-Farmer said suspending an employee without providing written notice of allegations they were facing fell short of what was expected of a reasonable employer.

She said seeking to entrap an employee by withholding an allegation and then suspending him when his only response was to ask what it was about was “wholly unacceptable”.

The WRC said the company had not completed an investigation report, which explained why Mr Boyle found Mr Maunsell guilty of the allegations against him.

It said there was no evidence whatsoever relating to allegations of immoral or indecent conduct or breaches of safety rules.

The WRC said there were fundamental breaches of fair procedures over the company’s failure to inform Mr Maunsell of allegations against him at all times which had placed him at a significant disadvantage.

It found that Mr Boyle’s involvement in each step of the disciplinary process, including the appeal, represented further breaches of fair procedures.

The WRC awarded Mr Maunsell €4,860 for the unfair dismissal and a further €6,480 for the associated loss of a right to redundancy.