UD689/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD689/2014

APPEAL(S) OF:                                                                                            

Castlecool Limited – appellant                                                                      

v

Conor Cahill – respondent

against the recommendation of the Rights Commissioner in the case of:

Conor Cahill

V

Castlecool Limited

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms. M.  Levey B.L.

Members:        Mr. T.  O'Sullivan

                        Mr O.  Nulty

heard this appeal at Monaghan on 26th March 2015 and 21st May 2015

Representation:

_______________

Appellant(s):               Mr Andrew Pierce, AF Pierce Consulting Services, Jachin, Drumbrick, Carrigallen, Co Leitrim

Respondent(s):            In person

This case came before the Tribunal by way of an employer appealing the recommendation of a Rights Commissioner under the Unfair Dismissals Acts 1977 to 2007, ref: r-137644-ud-13/SR.

The determination of the Tribunal was as follows:-

The respondent (employee) was employed as a fork lift driver at the appellant company’s chilled food s facility.  He was employed from March 2011 until November 2012 when he was dismissed for incidents in his performance. 

Summary of Appellant’s Case:

The respondent’s supervisor gave evidence.  The respondent’s role was to unload pallets from chilled containers and move them into the cold store.  This involved using a pull cord to open the ‘up and over’ door; a sensor opened it on the way out.  The door took three to four seconds to open.  The respondent hit the doors with the forklift on two occasions which led to his dismissal.  The supervisor was unaware of anyone else hitting the doors or of the doors stalling on the way up.  The supervisor notified the Operations Director of the incident.  The respondent already had two warnings on file for an unauthorised absence and for failing to completely unload an order. 

Sometime before the unauthorised absence the respondent left early one evening.  The supervisor called him back as no one was allowed to leave until the tasks were complete.  The respondent returned and was quite irate.  He didn’t recall telling him that he was the boss and he’d tell him when he was finished.

Regarding the unauthorised absence the respondent said to the supervisor that he wanted to book Friday 1^st June 2012 off and maybe Thursday 31^st May 2012 for a family wedding.  The supervisor entered the Friday on the leave calendar.  The respondent never confirmed whether he wanted the Thursday off.  On the Wednesday before the respondent said he was off for the following two days.  The supervisor said he had not confirmed the Thursday but the respondent said he didn’t care and was taking it.  The company needs 48 hours to arrange relief drivers and could not cover the following day.  The supervisor thought the respondent might arrive on Thursday but he did not.  The respondent was suspended for 3 days without pay.

Regarding the incomplete unload.  The respondent unloaded 24 of 26 pallets of burgers.  This was a frequent order and always came on 26 pallets.  The respondent left two on the truck which was not noticed until after the truck had departed.  The truck driver had to return later in the day with the rest of the order. 

A new pay system was trialled for three to four weeks which the respondent objected to, but the system never came into being as it resulted in them being down two employees on Mondays and Fridays which were their busiest days.

The maintenance manager gave evidence.  He had never seen the doors slowing or stopping on the way up. He wasn’t aware of anyone else hitting the doors.  The door takes four seconds to fully open and a ten second delay before closing.  The respondent normally drove a Nissan forklift.  He had not complained to him about the broken headlights.  Headlights often broke as they were externally mounted.  For health and safety purposes it was essential that the orange flashing light and horn were operational. 

The Operations Manager of the Castleblayney site gave evidence.  He attended the disciplinary meeting as a witness at the request of the Lough Egish Operations Manager.  The respondent refused the offer to have someone with him at the meeting.  He did not question the respondent.

The Lough Egish Operations Manager gave evidence.  He was operations Manager since 2007.   He had issued 5 warnings since then with 3 of them going to the respondent.  He originally employed the respondent on the recommendation of a third party.  He had previously worked for a cold storage company and he understood he was experienced.  He did not ask to see his certificates.  They gave him a test run and he seemed comfortable on the fork lift.  The respondent was trained onsite.

He gave the respondent a warning for failure to unload all of the pallets to remain on his file for 6 months.  The unauthorised leave occurred within 6 months of that.  It was the respondent’s blatant disregard that concerned him most.  He issued a warning and 3 day suspension to the respondent.  He made the decision to dismiss the respondent as he had hit the doors on two consecutive days.  He felt that it was a health and safety issue and that it was possible someone would get injured.  There were no non-driving positions available.

On the day of dismissal the Operations Manager spoke to the respondent who said he did not see the door being hit.  He told the respondent to sweep the floor and he phoned a manager from a sister facility to discussed it with him.  The other manager agreed with the witness that the respondent posed a risk driving a forklift and could lead to further accidents.  He asked an administrator to write a letter of dismissal.  He called the respondent into his office and told him it was serious and he could bring a witness which the respondent refused.  The respondent said he had nothing to say.  The witness read out the letter of dismissal, paid him holiday pay and the respondent left shortly after. 

During cross examination the witness confirmed that the employee who witnessed the respondent hitting the doors on the day of dismissal was not present at the meeting as he did not want to get involved.  The employee had also refused to attend the Tribunal hearing.  The manager had not received any other reports of drivers hitting the doors during his time there.

A new pay structure was introduced in 2009 whereby employees were paid only for 39 hours for Monday to Friday.  Any further hours were not paid.  The flat rate of pay was increased by €1 per hour to acknowledge this.  This was done to cap the wages bill when the company was in financial difficulty.  On average employees worked 41 to 41.5 hours per week.  The respondent joined when this was in place.

The appellant company’s representative heard the appeal on request from the managing director.  He read the respondent’s appeal statement and spoke with the Administrator and Operations Manager.  He informed the Managing Director that the company was in difficulties and had acted too hastily.  He spoke with the respondent who indicated that he wanted re-instatement.  The witness found that the respondent had not taken responsibility for any of the incidents in question and he believed that pattern would continue.  He could not recommend that the company should take him back.

Summary of Respondent’s Evidence:

The respondent gave evidence that he did not consider the incidents grounds for dismissal.  He had an accident with the door, but had not been reckless.  Neither of the witnesses to the door hitting had given evidence at the Tribunal.

He had an issue with the pay structure and not being paid for time after 5pm.  He disputed that it averaged to 41 to 41.5 hours per week.  He raised questions on the pay structure.  He understood it was meant to be temporary.  He believed the appellant company used the incidents to dismiss him in case he pursued the pay issue.  He believed the trialled shift period was an attempt to get rid of overtime payments. 

He had an appraisal with his supervisor after four months when he was told that he did not take instruction immediately.  He stated that he could not understand his supervisor’s accent on occasion but no problem was specified.  He believed the company was trying to delay paying him on the full rate of pay when he reached six months’ service.  He did not receive his full rate of pay until his seventh month after raising it with his supervisor.  He gave evidence of his loss.

Determination:

At the outset of the hearing the appellant company acknowledged that there were deficiencies in the appellant’s procedures.

The Tribunal upholds the recommendation (ref: r-137644-ud-13/SR) of the Rights Commissioner and awards the respondent a like amount of €15,000.00 (fifteen thousand euro) under the Unfair Dismissals Acts 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)