UD1202/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                               CASE NO.

Noel Farrell     -           claimant                                                         

                                                                                                                                    UD1202/2013

against

Kepak Group (Meat Division) T/A Kepak Longford             -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms M. McAveety

Members:     Mr P. Pierson

                    Mr J. Moore

heard this claim at Longford on 17th January 2014 and 22nd April 2014

                                                                                   and 23rd April 2014

Representation:

Claimant:       Mr Niall Phillips, Assistant Branch Organiser, SIPTU, Liberty Hall, Dublin 1

Respondent:   Ms. M.P. Guinness BL instructed by Smyth O'Brien Hegarty, Solicitors, 24 Lower

Abbey Street, Dublin 1

Summary of Case

The claimant was employed as a night cleaner supervisor at the respondent’s meat processing plant from February 2010. The Tribunal heard evidence that on the night of 2 July 2012 the claimant was involved in a workplace accident. He was in the process of clearing a blocked drain when his arm became stuck in the drain. He made a number of attempts to free his arm but was unable to do so. The fire brigade and a doctor were called to the scene. The doctor administered an injection to the claimant to calm him down and the fire brigade crew assisted in freeing his arm from the drain. In total his arm had been stuck in the drain for 3 to 4 hours and he was then brought to hospital and remained hospitalized for 3 days. He had incurred heavy bruising to his arm and was absent from work on medical grounds for 3 weeks following the accident. He did not receive any sick pay during this absence.

He returned to work on 31 July 2012 and was managed on his return with light duties. The cleaning contract at the plant had been outsourced by the respondent company in or around the time of the accident. On his return to work he was assigned duties on a vac-pac machine. He was then moved to the tray-wash area and subsequently to a squeegeeing job on the boning hall floor. He injured his back while working at this task and asked to be moved from this task for a day or so. He was then moved to the by-products table filling and lifting 25 kilos boxes where he remained until the termination of his employment.

Following his return to work he contacted his solicitor who wrote to the respondent on a number of occasions acting on his behalf. He brought a claim through his solicitor to the Rights Commissioner Service in respect of wages and overtime which he claimed was owed to him under the Organisation of Working Time Act. His solicitor also informed the respondent that he was pursuing a personal injuries action. He gave evidence that he was asked by company management known as (JW) to drop this personal injuries claim which he did and ultimately he never pursued this claim.

His solicitors subsequently wrote to the respondent by way of a detailed letter dated 23 August 2012 which inter alia raised a number of grievances on his behalf in relation to the manner of his treatment following his return to work. The respondent subsequently received a letter dated 10 September 2012 from the claimant’s solicitors alleging that the claimant was being forced to work heavy cleaning duties without assistance which are exasperating his injuries. As a result of this correspondence the respondent appointed (NK), head of Human Resources to conduct an investigation into the claimant’s grievances.

(NK) conducted an investigation meeting into the claimant’s grievances on 18 October 2012. (LC) was also present at the meeting in accordance with the claimant’s request. (NK) also met with a number of other employees as part of investigation process and detailed minutes from all of the meetings were opened to the Tribunal. The Tribunal heard evidence from (NK) and (LC) that the claimant demonstrated at the hearing that he could not raise his arm above elbow height. The Tribunal heard evidence that (JW) had engaged a private firm of surveillance specialists to monitor the activities of the claimant outside of the workplace. The claimant was placed under surveillance on 6 and 13 October 2012 and was observed carrying out gardening duties. A copy of this video evidence was made available to the Tribunal along with reports from the surveillance firm. Copies of the minutes of all the meetings with the parties and a copy of the video evidence were made available to the claimant as part of the investigation process. (NK) then wrote to the claimant by way of letter dated 22 October 2012 addressing his complaints which she summarised as follows:

1. Failure to pay an agreed wage increase.

2. Decision to outsource the night cleaning work to a contractor.

3. The incident of 2 July last.

4. Failure to pay sick pay.

5. Treatment by the company following the incident of the 2 July 2012.

6. Return to work - reduction in wages.

7. Return to work - Light Duties and ongoing difficulties with shoulder/arm

8. Return to work – other issues.

In conclusion she did not uphold his complaints in relation to points 1,2,3,5, and 8 above. In relation to complaint No 4 she found that the matter was before a Rights Commissioner and accordingly she did not comment on it. In relation to complaint No 6 she found it to be an administrative error and the matter was resolved. In relation to complaint No 7 she found that the information submitted to her by (JW) had uncovered serious discrepancies with the account provided/demonstrated by the claimant in relation to his injuries and restrictions. As such she recommended that the matter proceed to a disciplinary investigation and the claimant was suspended on full basic pay from 22 October 2012.

The Tribunal heard evidence from (DC), financial controller that he conducted a disciplinary investigation meeting with the claimant on 3 December 2012. The claimant was represented by his trade union representative at the meeting. The hearing covered the contents of the video footage and how it reflected on the claimant’s account of his ongoing difficulties with his shoulder/arm to (NK) at their meeting of 18 October 2012 and the taking of unauthorised leave by the claimant. The claimant viewed the video footage at the hearing. As part of the disciplinary hearing (DC) took statements from (NK) (LC) (JW) and a number of other employees. A follow-on meeting took place on 7 December 2012 where the claimant refuted the points made in (NK’s) letter of 22 October 2012, in particular those in relation to point No 7. (DC) then decided that the matter should progress to a disciplinary hearing and the claimant was informed of the allegations against him by way of letter dated 7 December 2012. The allegations against the claimant were that:

1. He had taken holidays without having obtained and been granted annual leave by his supervisor in accordance with company rules and policies.

2. During the course of the meeting with (NK) he made a number of inconsistent statements in relation to his fitness to work arising from injuries he described as having happened at the respondent’s premises.

3. During the course of the meeting with (NK) he made a number of inconsistent statements in relation to his ongoing physical problems. 

The respondent’s commercial manager (BD) gave evidence that he conducted the disciplinary hearing on 8 January 2013. The claimant was again represented by his trade union representative at the hearing. (DC) was also present at the meeting and a number of other witnesses joined the meeting at various times and read their statements at the meeting. Witness (KB) a supervisor made a statement that the claimant had requested holidays for a four week period on 4 October 2012. This request could not be approved as the claimant did not have the required level of leave left to take and (KB) informed the claimant of that. The claimant and his representative were given the opportunity to question the witnesses in relation to their statements. A copy of (DC’s) notes of the meeting was opened to the Tribunal. The hearing re-convened on 21 January 2013. (BD) gave evidence that the claimant gave a different account of events in relation to the extent and duration of the injuries he had sustained. He gave evidence that at the meeting with (NK) on 18 October 2012 the claimant had stated that he was demonstrating how his arm movement was restricted during a 2-3 week period after the incident rather than how his arm actually was on day of the hearing. However (LC) who had attended the hearing on 18 October 2012 clearly stated that the claimant had been unable to raise his arm at the hearing.

(BD) concluded that the three allegations against the claimant be upheld. He further found the claimant’s statements in relation to injuries he described as having sustained during the course of his work to be misleading and untrue. He concluded that the claimant had misrepresented his ability to work and this amounted to serious misconduct. He found that the claimant’s actions have irreparably damaged the trust and confidence so fundamental to an employment relationship and he took the decision to dismiss the claimant. This decision was conveyed to the claimant by way of letter dated 22 January 2013 and he was given the opportunity to appeal the decision. The claimant exercised his right of appeal by way of letter dated 26 January 2013.

The respondent’s project office manager conducted the appeal on 14 March 2013 and the claimant was again represented by his trade union representative. The decision to dismiss the claimant was upheld. This decision was conveyed to the claimant by way of a detailed letter to the claimant dated 25 March 2013, a copy of which was opened to the Tribunal.

The claimant accepted that he was given light duties on his return to work following the accident. However he denied that his duties in the by-products area were light duties. These duties entailed him filling boxes to 25 kilos in weight and lifting the boxes for storage at head height level. He told the Tribunal that he did not complain about his duties and described those duties as normal duties. He was happy to carry out his duties. He gave evidence that while he had contacted a solicitor in relation to his grievances he had not seen letters which had been written on his behalf by his solicitor. He had told this to (LC) and his grievances were confined to the decision to deny him sick pay, the decision to reduce his hourly pay without consultation or agreement and the treatment which he received from (JW) arising from the incident of 2 July 2012. He was asked by (JW) to cancel his solicitor which he did. He was unaware that his solicitor was writing letters on his behalf and told the Tribunal that he did not instruct his solicitor to bring a personal injuries claim.

He gave evidence that he did not request the presence of (LC) at the meeting of 18 October 2012. He was very nervous at the meeting as he did not understand the nature of the meeting. He showed his scars on his shoulder at the meeting and demonstrated the use of his shoulder. When he did so he was referring to an accident he had when he lived in England and the demonstration had nothing to do with his workplace accident with the respondent. He denied that he had said that he would be in agony if he did not wear a wrist support while at work. He told the Tribunal that the respondent provides wrist supports for lifting the 25 kilos boxes and other employees wear wrist supports. He stated that he had no issues or difficulties in working in the by-products area and his shoulder was not hurting him.

He accepted that he carried out gardening duties at the weekends. He saw no difficulty in doing those duties as he carried them out in his own time and not on the respondent’s time. He accepted that he did not give this explanation when shown the CCTV footage by the respondent. He has no personal injury action against the respondent. He gave evidence that he completed a holiday request form dated 4 October 2012 seeking to take holidays from 1 November 2012 to 28 November 2012. This was in line with normal leave requests and he left this form on his supervisor’s (BOS) desk and his leave request was granted by (BOS) 4 days later. He did not speak with supervisor (KB) in relation to his holiday request. He accepted that he was shown the CCTV footage and confirmed his identity in the footage. He saw nothing wrong in carrying out gardening duties at the weekends. He denied that he misled the respondent in relation to the nature and severity of his injuries. He was never asked to approve any of the typed notes of the meetings which were presented to the Tribunal. He has been unemployed since his dismissal and is seeking re-instatement to his former position.

Determination

The Tribunal have considered all of the evidence presented to the Tribunal and are satisfied that the sanction imposed by the Respondent was disproportionate and unreasonable in the circumstances. Therefore, the Tribunal finds that the decision made by the Respondent to dismiss was unfair and awards the claimant compensation in the sum of €25,000.00.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)