Sales assistant who ‘tapped’ manager’s chin awarded €2,000 for unfair dismissal

A sales assistant whose conduct towards his boss was “offensive, disrespectful and humiliating” when tapping him on the chin to get his attention has been awarded €2,000 for being unfairly dismissed.

The sales assistant worked for a British-owned discount retailer that has over 50 stores here.

The sales assistant worked at a Dublin store and a duty manager complained that on June 18th 2018 the worker had ‘slapped’ him twice on the face to get his attention to ask him if the shop had face paint for a customer.

The worker was sacked on June 29th 2018 after the retailer concluded that the man had raised a hand to the duty manager’s face.

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The worker was dismissed without notice for raising his hand to his colleague, behaviour that was considered to be “wholly unacceptable” contrary to the company’s values and which could have impacted on its reputation.

The man denied that he had slapped the duty manager, but had only tickled his chin.

The man sued for unfair dismissal and in her findings, Workplace Relations Commission (WRC) Adjudication Officer, Catherine Byrne found that the worker's description of what he did as a "tickle" is not credible.

However, after viewing the CCTV footage, Ms Byrne saw that the worker made swift contact in the form of two quick taps on the store manager’s chin.

Ms Byrne stated: “It is my view that the complainant’s action was not aggressive but that it was disrespectful, offensive and humiliating.”

Ms Byrne stated that the complainant’s conduct “was not violent”.

Ms Byrne stated that the disciplinary procedure “is intended to be progressive and to give an employee whose behaviour is not acceptable an opportunity to change, so that dismissal can be avoided”.

She said: “It is my view that the complainant should have been issued with a final written warning, so that he could reflect seriously on his conduct and so that he could be given a chance to demonstrate that he could behave respectfully and in line with the company’s values.

Ms Byrne stated that “having reached this conclusion, I find that the dismissal of the complainant was disproportionate and unfair”.

Ms Byrne found that “the sanction of dismissal was too severe”.

She stated: “I also find that some aspects of the process that resulted in the complainant’s dismissal were flawed. In conclusion therefore, I find that this was an unfair dismissal”.

The worker commenced a new job in October 2018 with a different employer at a higher salary and the man was therefore at a loss of earnings of 14 weeks.

Ms Byrne stated that taking account of his own contribution to his dismissal, she has ordered the retailer pay the worker compensation of €2,000.