EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee - claimant UD386/2012
Against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr. L. Tobin
Mr J. Jordan
heard this claim at Dublin on 20th September 2013
and 6th February 2014
Representation:
_____________
Claimant(s):
Ms Niamh MacGowan BL instructed by Brian Mac Mahon, Arthur E MacMahon Solicitors,
Poplar Square, Naas, Co Kildare
Respondent(s):
M. P. Guinness BL instructed by Peter Murphy, O'Mara Geraghty McCourt, Solicitors,
51 Northumberland Road, Dublin 4
The determination of the Tribunal was as follows:-
Determination
The Tribunal has carefully considered the oral evidence, documentation opened and submissions made in the course of this two day hearing.
The respondent company provides inspection, certification and repair services to clients working with mechanical equipment for the purpose of handling, lifting and moving objects and goods.
This is a small company with a small workforce and the claimant was one of three surveyors with a personal background in the welding of metal.
The claimant started his employment with the company back in 1992 and was principally working in the workshop as a fitter/welder. Gradually the respondent company gained expertise in the field of mechanical inspection which required Safety Certification as demanded by Statute.
The claimant worked alongside a senior mechanic PB and, in effect, learnt a lot of his expertise from this gentleman. In his evidence the claimant suggested that he was not wholly comfortable going on site on his own and it seems that his inter-personal skills may have been an area that required up skilling just as much as his mechanical/electronic expertise.
In evidence it does seem that the claimant’s employment was largely incident free for the first nineteen years
In and around the 15th of April 2010 the claimant was on one of the customer/client sites owned by DB doing a general inspection of equipment as part of the on-going contractual arrangement between DB and the respondent company.
Subsequent to the claimant’s inspection the MD of the respondent company was out at the same site and noted that a tow bar used for the safe towing of broken down buses seemed to be in a bad way. In its inspection the tow bar was passed with a need to repair which in his evidence the claimant said was normal and doable. The respondent MD did not agree and was of the view that the piece should have been scrapped as being rendered dangerous beyond use.
The Tribunal accepts that in something so technical there exists a subjective element of judgement, which means that the claimant’s view cannot be entirely dismissed as having being incorrect. The claimant’s background is in welding and he was of the view that the tow bar could be repaired and he had never seen a tow bar scrapped before. In the course of giving his evidence the claimant did concede that the photos made the piece of equipment look bad.
In consequence of this incident the claimant was disciplined and given a first written warning.
Not long after this incident a more serious issue came to light . Another client, the IDF wrote a letter to the respondent company respectfully suggesting that the claimant not be sent to conduct on-site inspections in the future. This request was made based on two incidents. The first in mid 2010 when the claimant neglected to put dampeners on a winch he was testing and the second when the manner of the testing of a winch was unfamiliar to the client and the client was therefore unsure that the test was being conducted correctly.
There can be no doubt that the respondent company had an enormous problem from the 30th of March 2011. Whilst the Tribunal would accept that neither of the incidents complained of had resulted in any actual danger or careless wrongdoing by the claimant, the respondent was left with the very real difficulty of not being able to allow the claimant onto the sites of one of its major clients.
The respondent company conducted a disciplinary and although the results of the disciplinary were provided, the respondent added a number of complaints from other customers and a second disciplinary was held.
It is noted that the claimant did not bring any representation though this facility was provided. The meetings were very long and very comprehensive and recordings of these meetings were made.
In the second disciplinary meeting an issue arose as to the nature of an inspection conducted on a lift owned by IC. The claimant conducted what he believed to be an adequate visual inspection whilst his employer believed the inspection should have been more comprehensive with some sort of diagnoses made. It is noted that the employer has a background in electronics though it is not clear what was the extent of the claimant’s knowledge in this field.
In addition a sling on the premises owned by J.C. had parts ordered for it by the claimant whereas a more detailed inspection demonstrated that other parts would also be required. The claimant made the case that he had not certified the piece and that any future difficulties would have come to light in the course of repair.
The outcome of the second disciplinary meeting was a decision to dismiss for gross misconduct.
An appeal process was offered though the Tribunal might have questioned the appropriateness of the fact that the investigator turned decision maker was appointing his own wife as the person to hear the Appeal.
Either way, the appeal did not proceed based on the preliminary requirement to have the Appeal hearing recorded which the claimant was not happy to allow. It was pointed out to the Tribunal that such a requirement was not laid down in the company handbook. The respondent made the case that the claimant had allowed the two previous meetings to be recorded. The claimant’s solicitor was objecting to the recording of the Appeal hearing.
The claimant brings the matter before the Tribunal stating his dismissal was unfair and the onus rests with the respondent to demonstrate it has acted reasonably and fairly in all the circumstances.
The Tribunal finds that the late introduction of the two later incidents into the initial investigation disciplinary process to have been extremely unusual. One of the big features of all the complaints made is the fact that none of the complaints made seemed to have been either made contemporaneously or inspected contemporaneously. So for example, a complaint from the DF came in on the 30 March 2011 relating to an incident nine months earlier and a complaint raised on the 31st of March 2011 was not addressed with the claimant for three weeks as the employer had opted to go out to conduct an on-site inspection of this complaint in or around the 13 April (i.e. within two weeks) and never even told the claimant he was so doing. It is further noted that no third party evidence was tested and no such third party evidence was ever sought.
The claimant’s representative has invited the Tribunal to address these unusual features of the investigation and disciplinary process as in fact being evidence of the respondent’s desire to set matters up in such a way that the only possible outcome was the termination of employment i.e. that a pre-determination of fault and misconduct was made.
The Tribunal cannot make such a serious finding but does accept that much in the conduct of the disciplinary and investigative process was imperfect and unfair in all the circumstances.
The Tribunal would however accept that the cumulative effect of the claimant’s own actions had made it difficult for the respondent to continue to employ him and the Tribunal must make a finding that some of his actions gave rise to the outcome.
In the circumstances the Tribunal awards the claimant €22,500.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)