UD295/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms O. Madden BL

Members:     Mr R. Murphy

                    Mr M. O'Reilly

heard this appeal at Dublin on 30 May

               and 10 & 11 December 2013

Representation:

_______________

Appellant:    

         Ms Grainne Loughnane on the second morning, otherwise

         Mr Andrew Turner, both of Hamilton Turner, Solicitors,

         66 Dame Street, Dublin 2

Respondent:  

         Mr David Farrell, IR/HR Executive, IBEC, Confederation House,

         84/86 Lower Baggot Street, Dublin 2

This case came before the Tribunal by way of an appeal by an employee (the appellant) against the recommendation of the Rights Commissioner ref: (UD113223/11/MR) under the Unfair Dismissals Acts 1977 to 2007.

The determination of the Tribunal is as follows

The appellant who has in excess of 30 years of experience working in or around port operations was employed from December 2002 as a terminal operative. His duties involved driving a tug unit which moves semi-trailers on or off the respondent’s vessels, fork lift truck driving or acting as marshal to relay instructions from the terminal controller (TC) and the chargehand (CH) to the other drivers.

On 18 May the claimant was one of seven terminal operatives involved in the loading of a particular vessel which was due to sail to Liverpool at 9-00am that morning. Following a fatal accident, in 2007 the position of marshal was introduced in order for the operations at the port to operate more safely. One of the seven operatives was nominated as marshal (NM) on 18 May the other six were involved in vehicle movements.

As the loading operation involves the tugs in reversing semi-trailers up the ramp and on to the vessel the area on the dock at the foot of the ramp is recognised as a high risk area such that, other than the marshal, it is not a place for pedestrians. It was common case that an instruction from the marshal is to be obeyed as if it came from a supervisor. TC, CH and the marshal are equipped with two-way radios whereas the remaining operatives are not. In effect the marshal relays the instructions from TC and CH to the operatives. It was further common case that it often occurs that, due to various contingencies, an instruction previously given by TC or CH direct to an operative can be changed and that change is reflected in the instructions given by the marshal to the operatives.

At approximately 8-30am on 18 May 2011, the claimant, who had been given an instruction by TC to complete the loading of the top deck of the vessel, was waiting in the high risk area to push the semi-trailer up the ramp when TC gave NM an instruction that the top deck was now full. This meant that the claimant was in the way of other semi-trailer rigs which were to be driven on to the main deck by their own drivers. Again it was common case that when this happened it was for the claimant to move out of the way to a safe place such as alongside the ramp.

The respondent’s position was that when NM told the claimant that the top deck was full the claimant did not move away to a safe place. The claimant’s position was that a conversation ensued between the two of them in which NM replied that he “did not know” in response to the claimant’s asking him what was he to do as he had got two semi-trailers including the one he was hooked up to load on to the top deck as had a colleague (AC).

After a few minutes TC became aware that the claimant was still in the high risk area and again instructed NM to get the claimant to move. It was common case that NM then told the claimant to get out of the way. The claimant’s position was that, whilst he could take the way NM spoke to him, NM had been aggressive and was shouting at him.

The claimant did not move and then NM shouted at the claimant “get out of the way, you fuckin eejit”. At this point the claimant left the cab of his tug and approached NM. A few seconds later NM took two or three steps back and fell over. It was common case that the claimant, who did not assist NM back to his feet, suggested to NM that he should have been a professional football player.

The claimant got back in his tug, moved to a safe position, the loading of the vessel was completed and the vessel sailed on time. After the vessel had sailed NM lodged a complaint with TC about the claimant’s conduct, alleging that the claimant had pushed him over.

Later that morning both the claimant and NM were suspended with pay pending further investigation into the incident between them. Statements were obtained from the claimant, NM, CH and three operatives who were driving tugs in the vicinity at the time of the incident. Whilst it was accepted that NM finished up on the ground none of them, apart from NM, reported that the claimant had pushed NM.

After studying CCTV of the incident the port manager (PM) sent an email to his colleague in Liverpool as they had ascertained that a commercial driver (CD) may have witnessed the incident and wanted to get assistance from CD if he had seen anything. His colleague replied that CD did not want to make a statement but had said that he had seen tug driver and man with radio having words and waving arms then tug driver was out of his tug and pushed the other guy over. CD says he thought they were larking about.

An assistant port manager from Liverpool (AP) and the Dublin customer service manager (DC) conducted the investigation into the events of 18 May. As part of their investigation they interviewed the claimant, NM, TC, CH, the other tug drivers working that morning and the training officer who happened to have been in the loading hut at the time. The report included the comments ascribed to CD but the investigators did not speak to him. The investigation concluded that there was evidence to suggest that the claimant assaulted NM on 18 May 2011. The investigators recommended in their report of 15 June 2011 that both the claimant and NM be invited to separate disciplinary hearings.

On 16 June 2011 PM wrote to the claimant to invite him to a disciplinary hearing on 27 June 2011 as he was accused of having assaulted NM and of having to follow a reasonable request of NM on 18 May 2011. The claimant was warned that dismissal was a possible outcome. A copy of the investigators’ report was furnished to the claimant.

At the disciplinary hearing PM was accompanied by the human resource adviser (HR) and the claimant was accompanied by his union representative (UR). After going through the issues raised during the investigation the meeting was adjourned, to allow PM & HR to clarify certain issues, until 11 July 2011. On 13 July 2011 PM wrote to the claimant to inform him that he was dismissed with immediate effect for gross misconduct as it was concluded that it was reasonable to believe that the claimant had pushed NM after exiting his tug in the high risk area on 18 May 2011 after his failure to follow NM’s reasonable request to move his tug.

On 22 July 2011 the general manager (GM) of the respondent received the claimant’s appeal against the decision to dismiss him. The claimant’s grounds for appeal were that he did not believe it had been reasonable to conclude that he had pushed NM; no allowance had been made for NM’s use of profane and abusive language.

The appeal was heard by GM and the human resource manager on 10 August 2011, the claimant was again accompanied by UR. On 12 August 2011 GM wrote to the claimant to confirm the rejection of his appeal against dismissal. Among his reasons for rejecting the appeal GM quoted in part the words attributed to CD. GM stated that the decision to dismiss was within the band of reasonable responses.

Determination

Apart from that provided by NM himself there was no evidence before the Tribunal that resolved the issue of whether or not the claimant pushed NM. Whilst the comments ascribed to CD were included in the investigation conducted by AP and DC the Tribunal accepts that these comments played no part in PM’s decision to dismiss the claimant. Similarly when GM conducted the appeal the comments of CD do not appear anywhere in the notes of the appeal hearing. However in setting out the reasons for his decision to uphold the decision to dismiss the claimant in his letter of 12 August 2011 GM referred to part of the comments ascribed to CD leaving out the part about larking about. Accordingly, the Tribunal is satisfied that the respondent cannot rebut the presumption that, at least in part, GM’s decision was arrived at by the use of information which the claimant was given no opportunity to test and which was not raised during the appeal hearing. This is a flaw so fundamental to the whole process that the dismissal must be rendered unfair.

Nevertheless the Tribunal is also satisfied that the claimant contributed in a serious way to his dismissal. The claimant told the Tribunal that whilst NM had been aggressive when he shouted at him that he could take it. That begs the question as to why the claimant did not move at that point rather than waiting for NM to swear at him. If the claimant had not left the cab of the tug in the high risk area this whole incident could have been avoided. In view of this serious level of contribution the Tribunal, in upsetting the recommendation of the Rights Commissioner, measures the award under the Unfair Dismissals Acts, 1977 to 2007 at €20,000-00.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)