Mr I. Nunez Lesende v St Mungo Community Housing Association — 2024

Mr I. Nunez Lesende brought a complaint of unfair dismissal after being dismissed for gross misconduct following an incident with a client at The Lodge on 31 August 2023. The respondent said the dismissal was for conduct after a fair disciplinary process. The claimant accepted during the hearing that his behaviour fell within the respondent's gross misconduct definition, and the tribunal found that gross misconduct was the principal reason for dismissal and a potentially fair reason under section 98 ERA 1996.

The tribunal considered CCTV and witness evidence about the incident. It found that the client had been rude and offensive to the claimant, and accepted that the claimant felt something wet on his cheek immediately before he pushed the client, but did not accept that the claimant felt physically threatened in the office or entrance corridor. The tribunal found that the claimant elevated the conflict into a physical one, had opportunities to remove himself from the situation, and grabbed the client by the neck or shoulder area and pushed him out of the door.

The tribunal held that the respondent had a genuine belief, on reasonable grounds, that the claimant committed misconduct. It found the investigation reasonable, including despite the claimant's criticisms about further CCTV, witness evidence, attendance at the site, and alleged predetermination. The judgment records that the respondent accepted the difficult context and considered mitigation including the claimant's length of service, good record, mental health condition, stress, provocation, and training concerns.

The tribunal concluded that dismissal was within the range of reasonable responses. It noted that the respondent considered lesser sanctions but concluded they would not fully safeguard clients. The unfair dismissal complaint was therefore not well-founded and was dismissed. No compensation or other remedy was awarded.