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Irish gross misconduct case ‘demonstrates dangers of unconscious bias’

Out-Law News | 25 Feb 2022 | 3:01 pm | 2 min. read

The gross misconduct ruling of an Irish employment tribunal shows the dangers of unconscious bias in the workplace, according to one legal expert. 

Paul Gary Dixon was dismissed for gross misconduct by furniture retailer DFS Trading Limited after an incident on 2 July 2020, when he called a warehouse colleague a “snowflake” and a “child brain” before allegedly rushing towards them with his fists clenched. He was suspended and later dismissed following a disciplinary meeting.

At a hearing of the Workplace Relations Commission (WRC) earlier this month, the WRC heard that the altercation involving Dixon, who had no previous behavioural or performance issues at work, had broken out only five minutes after the general manager had warned him about the “inappropriate manner” he used to address other staff members.

In response to being called a “snowflake” and a “child brain” a colleague insulted Dixon in return – before Dixon allegedly rushed towards the colleague with his fists clenched. Another worker who witnessed the incident said Dixon had raised his fists “like a boxer”. The general manager was forced to pull him away before any physical altercation could take place.

Jason McMenamin, employment expert at Pinsent Masons, said: “Often employees are not aware of bias and the impact of terminology. As part of an organisation’s D&I training colleagues should be encouraged to challenge their unconscious bias and to focus on inclusive behaviour and terminology.”

Later that day, two shift managers began a fact-finding meeting, and took statements from a number of employees who had witnessed the incident.  The general manager carried out an additional investigation on 14 July 2020. The general manager told the WRC that new facts that came to light during the initial fact-finding meeting had warranted a further investigation. Dixon was later suspended by the general manager, who said he feared a repeat of the incident could occur.

A senior manager in Belfast was appointed to hear the disciplinary meeting, which took place on 27 July. The senior manager overseeing the disciplinary meeting found that Dixon did not take ownership of his behaviour, and concluded that his actions amounted to gross misconduct. Dixon was dismissed four days later – a decision later upheld by an independent appeal manager.

At the WRC hearing, Dixon denied that he had acted in an aggressive manner and insisted that the decision to dismiss him was unfair, adding that there were no substantial grounds to justify it other than fabricated stories. He also said that the general manager and shift managers tasked with investigating the incident should not have been involved in the process, since they had either heard or seen the altercation.

But Flynn, the adjudicator, noted that, while the general manager and shift manager had been present during the incident, they only participated in the investigation stage and not the disciplinary or appeal stages. She added that the senior manager had also reinterviewed Dixon’s colleagues during the course of the disciplinary process. 

Flynn ruled that Dixon’s behaviour had amounted to gross misconduct and had been bad enough that “no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer”. She said his suspension prior to his dismissal was appropriate and that the decision by DFS to dismiss Dixon for gross misconduct had been reasonable and fair.

“Unconscious bias can affect recruitment and promotion decisions and have a negative impact on culture. To build a culture where everyone feels included, it is important that through training employees are given the confidence and tools to intervene and interrupt bias in the workplace in the correct manner,” McMenamin said.