A Fife Council employee who allegedly “walloped” a colleague on the back of the head was not unfairly dismissed.
An employment tribunal in Dundee has ruled that sacking Alexander Robertson, of Carden Castle Park, Cardenden, was not outwith the band of reasonable responses, even though another employer might have decided that a final written warning was appropriate for his gross misconduct.
The tribunal was told that Mr Robertson, an HGV driver/storeperson, worked with Steven Elder, a clerical assistant at the council’s Central Stores Unit at the Buko Business Building in Glenrothes.
Mr Elder, a wheelchair user with multiple sclerosis, was on duty in the reception area on May 28 2012 when he claimed Mr Robertson assaulted him by striking him on the back of the head. Mr Robertson was suspended pending an investigation into his allegedly behaving “in a threatening and violent way towards a colleague”.
Mr Robertson denied the allegation but statements were received from witnesses about an argument between the two men. A customer had called at reception for a collection and Mr Elder had not been able to contact Mr Robertson as he had not answered his mobile phone.
It appeared Mr Robertson did not think the mobile phone was an appropriate form of contact and the tribunal judgment said this appeared to be an ongoing issue.
The customer left and when Mr Robertson arrived in reception, he said he was not happy that nobody told him the customer was coming.
Mr Elder said he tried to call him and an argument started between the two men about whether Mr Robertson should use the mobile phone or whether his manager had told him not to use it.
Mr Elder admitted over-reacting in a verbal exchange between the two men but when he tried to apologise for swearing, he said Mr Robertson was behind him and “I felt a big wallop on the back of my head at the base of my neck.”
Mr Elder said: “What are you doing?” and Mr Robertson replied: “What are you talking about” and implied that he had not touched his colleague.
The incident left Mr Elder in tears. Colleagues saw the mark of the blow and he had to take painkillers.
In a disciplinary hearing Mr Robertson, who denied slapping Mr Elder, said he had more than 22 years’ service, no record of violence, enjoyed his work and would love to return to his post. He said he would be happy to take training or counselling to facilitate his return.
Ross Grieve, the commercial unit manager, concluded there was enough evidence that a physical act had taken place towards Steven Elder. Mr Robertson was dismissed and appealed but was unsuccessful.
Tribunal judge James Young said that after determining that misconduct had taken place, the issue was whether account was taken of mitigating circumstances, including whether Mr Robertson was under stress, Mr Elder had escalated the situation by swearing and Mr Robertson’s long service and good record.
He concluded that Mr Grieve had taken these matters into account. Mr Robertson sought reinstatement if dismissal was found to be unfair, but the tribunal ruled that it was fair.