EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Marcin Jackowski
–claimant one UD122/2014
Piotr Derc -claimant two UD142/2014
against
Keelings Logistics Solutions
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath BL
Members: Mr. D. Moore
Mr. J. Flannery
heard this claim at Dublin on 26th February and 9th April 2015
Representation:
Claimant: Marcin Szulc, Rostra Solicitors, 78 Benburb Street, Smithfield, Dublin 7
Respondent: Paul Rochford, IBEC, Confederation House, 84/86 Lower Baggot Street,
Dublin 2
The determination of the Tribunal was as follows:
Determination
The Tribunal has carefully considered the evidence adduced and makes this determination in respect of both claimants save insofar as any distinction between the claimants must be drawn between the claimants for the purposes of clarity.
Claimant one (MJ) had been engaged with the respondent company since 2006 and was employed as a general loader for this enormous distribution centre.
Claimant two (PD) had been with the respondent company since 2007 and again was employed as a general operative responsible for the loading of articulated and other trucks.
The claimants worked as a team for the purposes of these matters. They worked in one of the 32 loading bays in the company warehouse which said warehouse operated around the clock loading the articulated trucks to bring produce around the country. The claimants worked the night shift.
The goods outwards manager (DF) gave evidence that in the course of a random search of c.c.t.v. footage he came across footage of the claimants using the loading bay dock leveller in an unusual way.
There can be no doubt that there are very clear stand-alone instructions regarding the operation of the dock levellers in this warehouse.
Both claimants had signed off on the dock leveller procedures as recently as the 15th of May 2013 and the instructions clearly stated that: Personal and manual handling equipment must not be on the dock leveller while operating.
There is also provision for reporting any defect which has occurred with any equipment and machinery being operated in a shift and the practice is to report to the shift manager and where this happens the machine is “defective” until such time as it is repaired.
Mr. JB the site services manager confirmed that the dock leveler ramps gave problems from time to time and he accepted that "defective" machinery might include a broken lightbulb as well as a completely defunct piece of machinery.
In any event the c.c.t.v. which was shown repeatedly to the Tribunal clearly showed the claimants in turn “riding” the dock leveller in a manner which, without any explanation being given , appeared to be dangerous and certainly contrary to the clear instruction that personnel must not be on the dock leveller during its operation.
In addition to the clear contravention of their instruction regarding the “riding” of the leveller, there was in addition some footage showing some horseplay wherein PD was seen to go under a closing shutter door in contravention of good practice from a health and safety perspective.
In their defence the claimants repeatedly made the case that the clearly observed actions on the dock leveller were an attempt on their part to try and fix a malfunction occurring with the lip of the dock leveller returning to its “nest” as part of the stationary position to which the dock leveller must be returned.
The claimants additionally stated that contrary to the strict lettering of the procedures provided that there was a common place practice within the workplace to use the best endeavours to get faulty machinery working so that work could be completed within a shift. The implication therefore was that (and especially in the night time shift when maintenance crews would be at a minimum) employees would be expected to try and overcome any mechanical difficulties they encountered such that their ability might allow.
The claimants said that the dock leveller in the bay in which they were working was notorious for failure to engage correctly and that it was common practice to physically assist in the completion of its manoeuvre by adding the weight of one of them onto the ramp.
Crucially, from the Tribunal’s point of view was the fact that no evidence was adduced to show that any perfunctionary examination or test was carried out on the dock leveller in question to determine whether any fault existed. Additionally, it is noted that none of the claimants’ colleagues was asked whether they had experienced any difficulty with the said piece of machinery not operating correctly.
When asked by the Tribunal, the shift operations manager for the company confirmed that whether or not this piece of hydraulic equipment was defective, the behaviour observed was so dangerous and so contrary to the strictly observed health and safety standards that the outcome of a dismissal was fair and reasonable in all the circumstances.
As against this, the claimants made the case (and in particular MJ) that the company’s observance of health and safety was not so strict in practice and the pressure to get the work done in an allotted time was the constraint.
The Tribunal further notes that the claimant PD made the case that it was his misfortunate to have been working alongside MJ on the day in question as MJ had come to the attention of the company previously and was a “troublemaker” who had in fact only recently come back from a one month suspension following on a finding of failing to follow management orders.
The Tribunal accepts that the failure to in any way examine or investigate the justification being offered by the claimants was very unsatisfactory and unfair from their point of view. The Tribunal confirms that the dismissal was, in the circumstances, unfair but only insofar as the investigation process was inadequate. Having regard to the bigger picture the Tribunal finds that the claimants contributed extensively to their dismissal and in those circumstances awards the claimants the sum of €5000.00 each under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)