Worker fired for saying 'get that black man out of here' receives €4,500 for unfair dismissal

The man was dismissed for gross misconduct after his employer found the employee's comments were racially motivated and delivered in anger.

This was denied by the worker who stated that he has no animus towards black people and alleged that the term ‘black man’ was a term commonly heard on TV shows and that it wasn’t offensive.

The worker apologised for the use of the word and stated that he was employed by the retailer for seven years and he had never a racial accusation made against him before.

In a statement the worker at whom the remark was directed at stated that he found the words used offensive.

The man who was unfairly dismissed stated that he uttered the words believing that his new work colleague was slowing him down in his work and WRC Adjudication Officer, Marguerite Buckley found that the worker did make racially charged words against his work colleague at the retailer's regional distribution centre.

However, Ms Buckley found that the facts of the case did not warrant dismissal.

Ms Buckley acknowledged that she found this case to be a difficult one to make a ruling on but did find that the decision to dismiss the worker “was outside the band of reasonable responses and because of this the dismissal was unfair”.

She explained: “The bar for what justifies gross misconduct and dismissal is a high one. In considering the facts of the case, I don’t believe that they were at that level.”

She found that on the balance of probabilities, she accept the worker’s case was that the words were said, but they were not said in an aggressive manner.

Ms Buckley stated: “On that basis, a lesser sanction could have been imposed while still having the deterrent effect required.”

Ms Buckley stated the worker however “did contribute towards his dismissal in terms of his actions and words on the day in question”.

She stated that his efforts in applying for a replacement job were not enough and because of these factors “the award of compensation being made is being reduced substantially”.

The man now works as a labourer for a building company.

In its submission, the discount retailer stated that the incident was witnessed by the regional logistics manager who was present at the scene.

The firm stated that the person at whom the comments were made, did not actually hear the worker’s outburst, but he was aware it had been made.

The discount retailer stated that the outburst made by the worker “was made to undermine his colleague’s dignity and it had the effect of creating an intimidating, degrading, humiliating and offensive environment”.

On January 19 2018, the worker was suspended on full pay pending an investigation and at a disciplinary hearing on February 15 2018, the worker “acknowledged that his outburst could be considered racist”.

He contended at the time he didn’t consider that he had done anything wrong and acknowledged he should not have used the phrase that he did.

The firm told the WRC that the dismissal was an appropriate sanction in circumstances “because the conduct of the complainant was so fundamentally in breach of its values and principals as a multinational employer operating across the world employing thousands of people from different nationalities”.

It stated that it “has a zero-tolerance approach to any incidents of racially motivated discrimination or harassment”.

The retailer stated that it had sixteen different nationalities working for it in the regional distribution centre that the incident took place and it had a responsibility to intervene if anyone’s dignity was being infringed.

In his submission, the worker stated that the co-worker at which the comment was directed did not wish to pursue a complaint under the dignity at work policy.

The worker denied that the words in question were shouted or said in an aggressive manner.

He said: “There was air conditioning in the area and to be heard, one had to speak loudly.”

The man explained the comment was said due to pressure of work. He had worked 10 hours that day and was tired.

The new pickers such as the operative involved in the incident were slowing him down and putting him under pressure “because his pick rate would be bad”.

The man’s legal representative argued that the dismissal was disproportionate to the offence accused of and that a warning would have been enough in the circumstances where the complainant had no previous disciplinary issues.

Counsel submitted that the words were not racially charged and the context in which they were said was important and argued that dismissal should not be the automatic result.

He submitted that the words said were on the mild end of the spectrum and merited a measure short of dismissal.