UD1564/2011, RP2077/2011

 EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms S. McNally

Members:     Mr D. Hegarty

                     Mr J. Flavin

heard these claims in Cork on 19 February, 23 & 24 April

and 5 July 2013 

Representation:

Claimant: 

Respondent:

The determination of the Tribunal was as follows:

The claimant who initially qualified as an electrician became a lift engineer with another company around 1990. He was recruited by the respondent, which provides both lift installation and maintenance services throughout the state, in 1998 and became responsible for the repair and maintenance of lifts in the Cork and surrounding area. The claimant had some 70 clients with around 120 lifts on his route. The employment was uneventful until April 2010.

On 14 April 2010, following an inquiry into a fatal accident involving the use of a lift which was maintained by another organisation, the respondent’s technical advisor (TA) issued a safety notice to all repair and maintenance engineers concerning the use of short circuits (shorts) to override safety interlocks on lifts. This notice made it clear that shorts were only to be used when absolutely necessary and were only to be left on a lift while a maintenance man carried out a maintenance function and electrical repairs. Recognising that shorts are an essential tool in lift inspection the respondent provided a temporary shorting kit to all engineers. The claimant signed acknowledgement of receipt of his kit the same day. The notice included the warning “Any engineer who is found to have left a short in a control panel or any part of a circuit will be immediately dismissed”.

On 2 March 2010 the respondent’s installation supervisor (IS) sent an email to TA, with a copy to the maintenance manager (MM), concerning the condition of a lift at a client in West Cork for which the company was in the process of carrying out a refurbishment contract. After a list of five items which required action by the client, IS stated

 “The standard of maintenance on this lift was bearing on criminal neglect”

IS then set out a list of the problems

·         Only one out seven shaft lights was working

·         An oil leak from the gearbox dropping oil on top of the lift car, no measure taken to try and contain the oil

·         A landing door lock was shorted out

·         Rubbish left in the plant room

On 26 April 2010 IS sent an email to TA following his attendance at a call out a pharmaceutical site (the pharma site) at which the respondent was responsible for the maintenance of fourteen lifts. IS expressed concern at a few things he saw at the pharma site and requested that all lifts at the pharma site be surveyed by a supervisor as soon as possible in order to cut down on the level of call outs.

Arising from the issues raised in March with the West Cork lift and issues with three other lifts, one of which also involved an issue with shorts, at three different sites TA met the claimant on 26 April 2010 and the issues raised were put to the claimant. Following this meeting TA sent a memorandum to the claimant titled “Performance Standards”

After listing the specific problems with the four lifts TA continued

“As you are aware we have discussed quality and work standards performance at various meetings and conference calls over the past 12 months, we advised you and all other engineers that if there were sites on your route that were in poor condition that you should report that immediately and we would put the resources or plans in place to tackle those sites.

We did not receive any such reports from you and we could only assume that all your lifts/sites were up to the required standard.

Now that we have detected the issues as listed above it makes it difficult for us to assume that all your other sites are up to standard so we must make further checks now to ensure that this is the case.

We will do all in our power to ensure that we are providing a quality service and poor performance standards and issues regarding safety are not acceptable any longer. On several occasions over the past 12 months we have stressed the requirement to ensure that all primary safety circuits are working  on every lift  and shorts in locks, doors, control panels etc. are not allowed and if found the matter would be dealt with formally.

The procedures have not changed, you are expected to ensure that all safety circuits are working and you cannot leave site with shorts in the equipment. You are reminded of the safety notice dated 14/4/10. I attach a copy for your reference, you must observe these procedures.

You are expected to be responsible for your lifts/sites and report about sites that are below standard so that we are aware of same and more importantly so we can address any issues that may arise.

In order to assess your progress in resolving the issues as listed above, we will meet monthly to review your work standards having inspected some sites where maintenance has been done by you during that month.

We urge you to ensure both yours and users safety and to comply with the procedure regarding same.

This matter is not part of the company disciplinary process and we expect that the matters will be resolved by you as soon as possible, but any repeat of such actions as outlined above will be viewed as gross misconduct and will be dealt with on a formal basis and disciplinary procedures will be invoked immediately.”

On Friday 14 January 2011 the respondent responded to a call out from the pharma site whereby lift 4110 was operating with the bottom landing door open but the lift was not at that landing. This left a 1.5 m fall zone into the lift pit. A maintenance engineer (ME) who happens to be the brother of TA attended the pharma site along with TA as the claimant was out sick. The landing locking pin was found to be incorrectly adjusted and a short had been applied in the controller.

After consulting the log for lift 4110, TA ascertained that their final year apprentice (AE) had been the last to attend lift 4110 on a call out on 29 July 2010 and the claimant had carried out a full standard maintenance on 21 December 2010 at which time all safety devices should have been checked. It was later discovered that the claimant and ME had attended lift 4110 on 7 January 2011 for a visit which had not been captured by the respondent’s logging system. The pharma site is unique on the claimant’s route in that it is not permitted to use the normal PDA electronic logging of work because of the electronics interferes with this site’s automator. The respondent’s engineers are required to write notes which are later transferred to the logging system. The 7 January visit of the claimant and ME had not been picked up as the lift identity was not included in the report.

MM met the claimant in Charleville on 18 January 2011 and at this meeting told the claimant he was not to attend the pharma site again unless specifically instructed by MM or TA. The claimant was reminded of the memo of 26 April 2010 and told that on 3 February 2011 he would meet both MM and TA and they would then inspect three or four lifts which the claimant had serviced from 19 to 31 January 2011.  MM then wrote to the claimant on 20 January 2011 setting out the respondent’s position. The letter concluded:-

“This matter is not part of the company disciplinary process and we expect that the matters will be resolved by you as soon as possible, but any repeat of such actions as outlined above will be viewed as gross misconduct and will be dealt with on a formal basis and disciplinary procedures will be invoked immediately which may lead to the termination of your employment with immediate effect.”

On Sunday 23 January 2011 the respondent received a call out from the pharma site concerning lift 4115. ME attended the call out and found that the top landing door, 3 mezzanine, of seven was open with the lift at the lowest level leaving a 30m fall zone. Lift 4115. He locked it off and made it safe pending a visit by TA, IS and the claimant, who had been called to the pharma site to assist with the investigation, at around 8-00am on Monday 24 January 2011.

A subsequent inspection of 3 mezzanine landing of lift 4115 revealed that the door locking pin, made of steel and some 1.2m long, was missing. TA, IS and the claimant then went to the lift’s machine room. Whilst there was a dispute between the parties about the exact circumstances of what was said and how long it took, it was common case that the claimant found the missing locking pin plus three others in the machine room. Subsequent further inspection revealed pins removed from two other landings of lift 4115 and the fourth pin to have been removed from one landing of another lift.

The respondent was required to attend an incident meeting with management of the pharma site at around 11-00am. It had been intended that TA, IS and the claimant would attend, however after discussion with MM it was decided that the claimant would not attend. At some stage that morning the claimant was suspended with pay by TA pending further investigation. The respondent’s position was that the claimant was suspended at the same time as he was told he would not be attending the 11-00am meeting. The claimant’s position was that he was suspended after that meeting.

On 25 January 2011 MM wrote to the claimant setting out the allegations against him with regard to lifts 4110 and 4115. An investigation carried out at the pharma site by IS also revealed a short fitted to lift 4116. A table included in the letter showed that the claimant had attended 84% of calls at the pharma site including 68 of 76 calls on lifts 4110, 4115 & 4116. He was called to a disciplinary meeting on 28 January 2011.

The disciplinary meeting was conducted by MM with TA in attendance; the claimant was accompanied by a colleague.

On 31 January 2011 MM met the claimant again and informed him of his dismissal for gross misconduct and gave him a letter confirming same. The claimant received six weeks’ pay in lieu of notice. The claimant chose not to exercise his right of appeal to the managing director. He told the Tribunal that he felt the decision to dismiss him was final and there was no turning back from it.

Determination:

The claim under the Redundancy Payments Acts, 1967 to 2007, is dismissed for want of prosecution.

Regarding the claim under the Unfair Dismissals Acts, 1977 to 2007, the Tribunal accepted that the issues raised were serious enough to warrant a termination of an employee’s employment, in particular the incident of the 23^rd of January 2011, where it was found that a lift had opened on the top floor landing with the lift not at that floor, leading to 30m fall zone. It was fortunate that no serious accident occurred with the door opening in those circumstances as a forklift could have backed in to the lift and dropped as much as 30 feet.

The Tribunal had to consider the adequacy of the respondent’s procedures in its dealings with the claimant and the question of whether the respondent carried out a sufficient and fair  investigation of the two incidents, which occurred on the 14^th of January 2011 and the 23^rd of January 2011, resulting in a situation where the sanction of dismissal was reasonable in the circumstances.

The respondent had cause for concern as far back as April 2010 about the work standards and performance of the claimant. Although, it was stated by the respondent in writing that repetition of certain unsafe practices would not be tolerated, no formal warning was served on him.  The tribunal noted that the respondent expressly stated in correspondence to the claimant that the disciplinary process was not being invoked and therefore the Tribunal is of the view that the respondent could not rely on the contradictory statement in the same correspondence that a repetition of the acts complained of by the respondent would bring about a dismissal.

Given that two of the respondent’s employees were blood related it was not appropriate for one to investigate the circumstances of an incident which had involved the other. The respondent company had the capacity to ensure that the investigation could be handled by another of the respondent’s employees.

The Tribunal considered whether there were gaps in the investigation carried out by respondent, whether any other employees of the respondent could have accessed the lift site of the respondent’s client, in particular, in January 2011. The claimant and his representatives obtained the data logs of the lift site of the claimant in January 2011 from the respondent’s client. The respondent could have endeavoured to obtain information on all of its employees at this lift site. The claimant found locking pins when he went in to the machine room on the 24^th of January 2011. It is noted by the Tribunal, that there is a dispute as to the evidence of who removed the locking pins from the lift in question. The question as to whether or not another employee of the respondent had prior access was of importance in the investigation. The Tribunal found out at a very late stage that the claimant was not the only employee of the respondent to attend the site of the respondent’s client in January 2011. It appeared to the Tribunal that the respondent should have been more certain rather than leaving anything not investigated.

It appeared that, when the second incident of the 23^rd of January 2011 occurred which was during the course of the investigation of the first incident on the 14^th of January 2011, instead of slowing down the investigation, it actually accelerated it.

It is accepted by the Tribunal that while the claimant attended the disciplinary process and denied the allegations, he did not fully co operate by putting forward the alternatives and not invoke the internal appeal procedure on the basis he that the decision to dismiss had come from the top.   

In all the circumstances of this case, the Tribunal is unanimous in finding that the claimant’s dismissal was procedurally unfair. However, having heard evidence as to the claimant’s financial loss and efforts to mitigate that loss, the Tribunal unanimously deems it just and equitable, in view of the claimant’s very significant contribution to his dismissal, to award the claimant compensation, in allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, in the amount of €10,000.00 (ten thousand euro).  

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)