EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1526/2013
MN731/2013
CLAIM OF:
Stephen Casey - claimant
against
Oran Pre-Cast Limited, t/a Oran Pre-Cast - respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr W. O'Carroll
Ms H. Murphy
heard this claim at Galway on 29th April, 11th and 12th June 2015
Representation:
Claimant: Mr John O’Donnell BL instructed by Mr. Colman Sherry, Solicitor, The Square, Gort, Co. Galway
Respondent: MacSweeney & Co., Lismoyle House, Merchant's Road, Galway
The determination of the Tribunal was as follows:
Respondent’s Case
The respondent designs, manufactures and suppliers precast concrete structural products to customers in Ireland and Britain. In common with many enterprises involved in the construction industry, this company suffered a noticeable decline in its workforce and revenue due to the more challenging market and trading conditions from late 2007. In 2003 it was at the receiving end of a substantial fine due to breaches of health and safety standards.
The respondent was sub-contracted to undertake work at a site in Athlone where a community school was being built. The company commenced this project in late 2012 with an expected termination date for August the following year. According to its managing director there was no particular pressure or tight timetable to be adhered to. Several employees ranging from general operatives to skilled tradesmen were earmarked for this work. The claimant had overall responsibility for their supervision having the title of director of operations’.
As a result of a severe accident on this site in late June 2013, an employee was seriously injured. The managing director stated that no blame attached to the claimant for this incident and that no disciplinary action was taken against any of its workforce due to it. However, he met and discussed health and safety matters with the claimant around that time. In addition, the claimant signed off on a method statement document on the installation and control measures needed to properly and correctly erect pre-cast structures for this site. A week later on 16 July 2013 a safety breach report was completed by the main contractor naming the claimant as not complying with a safe work plan regarding those structures. That report indicated this was his first offence and merited a verbal warning.
Together with the health and safety officer, the managing director undertook an investigation into this reported incident. The claimant was one of several employees interviewed. The claimant was unable to adequately or give acceptable reasons for his alleged breach of safety procedures. The company suspended him from duty pending the conclusion of its investigation. Following a disciplinary hearing, the managing director wrote to the claimant on 26 July 2013 informing him of his dismissal. The managing director concluded that the claimant was responsible for the shortcomings in health and safety and that this breach was so serious it deserved immediate dismissal.
Notwithstanding the reasons for this dismissal, the respondent was adamant it paid the claimant what it called notice payment amounting to eight weeks’.
Site supervisor PW gave evidence of working at the site on the 16 July 2013. He was supervising one crew at the site while the claimant was supervising another crew. In preparation for the work that day, it was agreed that a fifty tonne crane would be used. The witness contacted DS the loading supervisor in advance of the concrete panels being loaded and delivered to assist with the lift on site. That morning he arrived on site at 7.30am and noticed the hi-ab lorry. He recalled speaking to the claimant about the job, who informed him that the hi-ab would be used. The witness was aware that the method statement did not include the use of the hi-ab crane but did not challenge the claimant as he was more senior. After the claimant was suspended, PW took over as site supervisor. PW did not attend any site safety training at any stage.
Health and Safety manager with the respondent company (MP) had responsibility for the method statement on the project. A site specific method statement was opened to the Tribunal and a number of amended statements were referenced in evidence. When changes were notified to him by the site supervisors he made the amendments to the statement and issued the updated version to the main contractor. The statement included a list of names of those working on the site and included the claimant identified as site supervisor. The use of a hi-ab crane was not included on the document and the claimant never sought to include it at any stage. MP described the claimant as a highly experienced and well trained employee. The main contractor had raised concern that the claimant was not attending all of the site safety meetings and BF was assigned that responsibility. The claimant remained the main contact in charge of the installation work and BF was responsible for signing off on all the documentation and liaising with the man contractor on site. MP received a telephone call from the main contractor about the use of the hi-ab crane and reported it as a serious safety issue. The witness accepted that there was no lift plan in place for the task being carried out on the 16 July 2013.
The loading supervisor confirmed for the Tribunal that he received a telephone call from PW the day before the incident requesting the panels be loaded in a certain way to assist with the unloading and installation process at the site.
The crane operator DS, who operated the hi-ab crane on the 16 July 2013 under the instruction of the claimant, gave evidence. The week prior to the 16 July 2013 DS recalled there was some discussion about the particular task and when he commenced the job on the day he assumed all the documentation was in order. DS had not seen the method statement. On the day he was operating the hi-ab under the direction of the claimant and PW, he noticed the site foreman was observing the lifting of the third panel. He accepted that the lift looked dangerous. He had not received a lift plan prior to the task.
BF gave evidence of his role at the site. He was the engineer on site and on the morning of the 16 July 2013 he was setting levels before installation work would commence. He was not involved in the installation of panels. Once panels are placed his role was to quality check the positions prior to concrete pour. He observed PW directing the installation of the first panel. His other duties included a quality check walk through the site accompanied by the engineer from the main contractor. He was aware of the hi-ab in use at the site and did not report this to MP. He was not part of the installation crew and recognised the claimant as the top man on site. He did not wish to create any trouble for the claimant, worried it could “impact his own job” if he raised any issues. BF attended the site safety meetings with the claimant, as it was a requirement of the main contractor.
Claimant’s Case
With the aid of a detailed model the claimant demonstrated to the Tribunal and parties how he successfully planned and managed the erection of the pre-cast structures into place.
The claimant gave evidence that the method statement did not include how the panels would be installed and he was left to figure it out. He discussed the task with PW and decided a test run would be the best course of action. BF, engineer, did say that there was no paperwork for the method using the Hi-ab, but did not stop the test run. The claimant received and accepted a verbal warning on site that day from the main contractor. He was assigned alternative work the following day supervising the cleaning crew.
The claimant submitted that he was never in charge at the site and he had no responsibility for picking the crew or the engineers for the project. Prior to the incident there was no previous disciplinary action on his file. He had thirty three years’ experience with the company. The claimant was of the view that the sanction imposed on him was severe.
The claimant admitted he signed the method statement without fully reading the content. He further submitted that he ordered the Hi-ab crane from AM the transport manager, having discussed it first with BF. The claimant did not avail of the appeal process as he believed it was unfair given that the appeals officer was the company accountant.
Determination
The Tribunal has given careful consideration to all the evidence in this lengthy case. The claimant gave a practical demonstration using models to show how he managed the installation of the wall panel in question on the 16 July 2013. The task involved was difficult and complicated but the claimant successfully completed the installation without any adverse consequence. It was noted that the method statement did not contain directions or instruction on the installation of the aforementioned panel. Furthermore, there was acquiescence on the part of the respondent during the course of this manoeuvre.
The Tribunal found the claimant to have been a most credible witness. He had a thirty three years unblemished working record with the respondent. The sanction impose on the claimant was disproportionate to the alleged breach under the circumstances. It was noted that no other employee was sanctioned following the incident of the 16 July 2013.
Furthermore, the respondent offered a compromised appeal procedure in that the appeal offered did not involve a detached or independent body to hear the appeal.
The Tribunal endorses the view in the case of Bunyan v United Dominions Trust (1982) ILRM 402 that; “the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved”. The respondent in this case did not show that the reason to dismiss was reasonable in all of the circumstances.
Accordingly, the Tribunal unanimously finds that the dismissal was unfair and awards the claimant the sum of €29,760.00 under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal heard evidence that the claimant received payment in lieu of minimum notice therefore the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)