UD1732/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                             CASE NO.

Mathy Elebe                                       -appellant

                                                                                                                        UD1732/2012

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

Keelings Logistics Solutions             -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr. D. Hayes B.L.

Members:      Mr. A. O'Mara

Mr. F. Keoghan

heard this appeal at Dublin on 29th January 2014, 15th May 2014 and 19th June 2015

Representation:

Appellant:       Mr Philip Moroney, Solicitor, Trayers & Company, Solicitors,

29/30 Ushers Quay, Dublin 8

Respondent:    Mr. Eamonn McCoy, IBEC, Confederation House,

84/86 Lower Baggot Street, Dublin 2

Background:

This appeal came before the Tribunal by way of an employee (the appellant) appealing against the Rights Commissioner Recommendation reference: r-123883-ud-12/JOC.

Dismissal as fact was not in dispute between the parties. The respondent company operates a distribution centre for Company T. The appellant commenced employment with the respondent in 2005 and his employment terminated in January 2012. The appellant operated mechanical handling equipment within the distribution centre.

It was the company’s case that CCTV footage from the distribution centre showed the appellant using a mobile phone while operating mechanical handling equipment on 8 December 2011. During both the investigation and disciplinary process the appellant declined to view the CCTV footage of the incident.

It was the appellant’s case that during each stage of the process he was represented by the union. The admissibility of the CCTV footage was objected to by the union due to an agreement that the CCTV footage could only be used in cases of theft.

This issue arose again on the third date of hearing in the context of the Data Protection Acts. Representation for the appellant submitted that the CCTV recording which was the subject of this case, was the property of Company T rather than the respondent company. It was submitted that under the Data Protections Acts recordings can only be supplied as per certain specifications to other parties. In this case Company T was not entitled to make it available to the respondent company and in any event employees should be told if there are CCTV cameras and if they will be used for the purpose of disciplinary procedures.

It was the company’s case that no formal agreement exists with the union to prohibit CCTV in the warehouse. Company T’s CCTV policy does not form part of the respondent’s handbook. Representation for the respondent submitted that the long-held view of the Employment Appeals Tribunal is to view CCTV footage if it is germane to the dismissal of the employee.

Summary of evidence:

A Warehouse Team Manager (DO) gave evidence that on 5 February 2011 he observed the appellant using a mobile phone while unloading the trailer of an articulated lorry. He sent an email to the human resources department for a note to be put on the appellant’s file.

A second Warehouse Team Manager (LH) gave evidence that he also observed a breach of procedure by the appellant during February 2011. He approached the appellant about an uncompleted task and saw him texting on a mobile phone. When approached by the Warehouse Team Manager the appellant initially ignored him and then became aggressive to the point where the Warehouse Team Manager “backed off.”  He subsequently asked another manager to accompany him when he informed the appellant that he would be informing human resources and the operations manager of the incident.

It was the appellant’s evidence that he was not issued with warnings in relation to these two incidents or any other disciplinary issues since 2005.

The Training Manager was satisfied that the appellant had received training. He gave evidence that each new warehouse operative receives an induction and then training on machinery as they become more experienced. Each year employees are provided with refresher training. The company policy states that the “use of handheld mobile phones while driving is considered a serious risk and an offence against the traffic code (i.e. driving without due care and attention)” and also that employees working in all areas of the distribution centre will only be allowed to use mobile phones in recreation areas in authorised break times as the use of phones whilst using equipment is forbidden. A questionnaire completed as part of training was opened to the Tribunal. The appellant had correctly answered that an employee is only allowed to use a mobile phones in the recreation areas during authorised break times.

In reply to questions from the Tribunal, the Training Manager stated that if an employee is expecting a call he alerts the manager to this and retreats to a safe area to take the call. There is no culture in the company of a mobile phone being used while a machine is being operated. He did not know of anyone else dismissed for mobile phone usage. On occasion he has observed employees using a phone in the warehouse but not while operating a machine.

In his direct evidence to the Tribunal the appellant was unsure if he was provided with various company documents but he stated that he had “never” received a mobile phone usage policy from the respondent company nor advised as to appropriate mobile phone usage. During cross-examination the appellant later accepted that he had signed receipt of the employee handbook which contained the respondent’s mobile phone policy. He accepted that he had received this policy at the commencement of his employment in 2005. During cross-examination he also accepted the training records where he had selected the answer that mobile phones were not allowed in the distribution centre. It was also put to the appellant that he had received refresher training on health and safety matters concerning mechanical handling equipment and he accepted this.

The CCTV footage of the incident was viewed by the Tribunal on the first day of hearing. The Security Manager of Company T gave evidence that the appellant opened a fire door on 8 December 2011 which triggered an alarm causing the security guard to examine the camera in the area. The security guard viewed the appellant talking on his mobile phone while operating a mechanical handling vehicle causing him to report the matter to the Security Manager.

The Security Manager stated that the CCTV footage is viewed only by security staff, the human resources department or by him in his capacity as Data Controller. He viewed the footage, identified the appellant and referred the matter to human resources as what he observed on the CCTV footage was a breach of health and safety procedures but it was not within his remit to investigate the respondent’s employees.

In reply to questions from the Tribunal, he confirmed that the issue of mobile phone usage did arise at health and safety committee meetings in a general manner but not specifically in relation to mechanical handling equipment as it is known that mobile phones are only allowed in recreational areas and not in the distribution centre. Notices detailing this are displayed on walls and staff are also informed of this in training and reminded of it through the team newsletter. He was unaware of any other instances of a similar nature.

A third Warehouse Team Manager was involved in investigating the incident as he was the appellant’s direct manager. An investigation meeting was held with the appellant on 28 December 2011 regarding a breach of health and safety (i.e. using a mobile phone while driving mechanical handling equipment). The shop steward present with the appellant refused to view the CCTV footage of the incident and requested a statement from Company T’s Security Manager. The meeting was adjourned to a further date.

During the intervening period the witness asked the General Manager and another colleague for advice on how to proceed with the investigation in light of the refusal by the appellant to view the footage. The advice proffered was to make the offer to the appellant again but continue with the investigation if he refused. Ultimately, this is what transpired. The witness compiled an investigation report having viewed the footage in the presence of the Data Controller. He observed clearly that the appellant was using a mobile phone while operating machinery. He concluded that the matter warranted disciplinary action.

A Shift Operations Manager gave evidence that he is one of four such managers with responsibility for day-to-day operations in the distribution centre. He was tasked with carrying out the disciplinary procedure and he ultimately made the decision to dismiss the appellant. A disciplinary meeting was held on 20 January 2012. The appellant had received a copy of the investigation report compiled by his direct manager and a letter outlining that the procedure could result in a disciplinary sanction being applied up to and including dismissal.

The Shift Operations Manager wanted to ensure that the appellant was again offered the opportunity to view the CCTV but once again the appellant’s representative stated that the respondent company did not have the right to view the footage. At that point in time the Shift Operations Manager had not yet seen the footage. During the course of the meeting the appellant’s union representative denied on the appellant’s behalf that he was using a mobile phone while driving the mechanical handling equipment. The appellant did not correct his representative.

At the disciplinary meeting the appellant stated that he could not recall receiving the employee handbook or induction documents. The Shift Operations Manager showed the appellant the mobile phone policy document that he had signed receipt of. An issue was raised regarding the date of the incident as the Security Manager’s statement set out the date as November rather than December. The Shift Operations Manager clarified that this was a typographical error. He considered the CCTV footage after the disciplinary meetings and the fact that the appellant was aware of the relevant policy. He found that the appellant had breached health and safety and that his behaviour constituted gross misconduct with the relevant sanction being dismissal.

The General Manager was tasked with hearing the appeal which was held on 13 February 2012. The grounds of appeal were outlined and included the fact that the appellant denied using the mobile phone and that it had come to light that the date of the incident in the Security Manager’s statement was incorrect. Other grounds of appeal included the length of time from the incident to the time of dismissal and that mobile phone usage was not specified as gross misconduct in the respondent’s procedures.

A further ground of appeal was the objection to the usage of CCTV as part of the investigation. The General Manager did not view the CCTV footage until he had heard the appeal. He outlined that the CCTV policy is owned by Company T who utilises it to protect assets but also for health and safety reasons. The respondent company uses the CCTV as part of investigations into accidents or to address or investigate matters brought to its attention by Company T. The appellant’s representative took the position in the appeal that the respondent was not entitled to view the CCTV footage without the appellant’s permission. The General Manager asked the appellant if he had used a mobile phone and it was denied by the union representative on behalf of the appellant.

Following the appeal meeting the General Manager viewed the CCTV footage and saw the appellant utilising a mobile phone while operating the vehicle. He wrote to the appellant informing him that he had “decided to uphold the initial decision and therefore I find that dismissal is an appropriate sanction.” He stated that as the senior manager on site he could not allow such a flagrant breach of health and safety procedures. During cross-examination he accepted that he had not offered reasons for the outcome in the letter to the appellant. He stated that the denial of the appellant about the incident was a “big factor” in the decision to dismiss. During cross-examination he confirmed that he had checked with the human resources department as to whether there were any other issues of employees using mobile phones while operating machinery.

In reply to questions from the Tribunal, the General Manager stated that the employees are made aware of CCTV within the distribution centre but he was unsure whether or not they would have had sight of Company T’s CCTV policy which the respondent company also utilises. He accepted the policy was ambiguous as to whether or not it would be used for health and safety reasons but stated that the primary focus of the review of CCTV by Company T is for the protection of stock however they can also raise an issue with the respondent as happened in this case. The unions over the years have challenged the respondent’s use of the CCTV footage on issues of health and safety.

It was the appellant’s evidence that he declined to view the CCTV footage as he was advised by two different union representatives that he did not have to view it.

During his direct evidence the appellant recalled that during his employment everybody used mobile phones in the distribution centre and managers would tell employees that if they needed to take a call they should take themselves somewhere safe to answer it. It was the appellant’s case that he had used his mobile phone in a safe place and there were no other employees in that area of the distribution centre at the time. During cross-examination he agreed that the machine was moving at the time that he was using the mobile phone.

Two former employees of the respondent company gave evidence in support of the appellant’s case. JK was employed as a general operative for 8 years. He was also a health and safety representative. It was his evidence that he recalled receiving excerpts of the employee handbook but he could not recall receiving the handbook in its totality. He stated that as the years progressed a firmer tone was taken by management regarding mobile phone usage but that this was at odds with what happened in the distribution centre itself, as between line managers and employees there was a tolerance towards mobile phone usage. JK had on occasion used a mobile phone in the distribution centre but in a safe zone. In the health and safety meeting a safe zone would be discussed as a zone the employee assessed to be safe having regard to their training. The use of a mobile phone was not the basis for disciplinary action but the manager would “take you up on it” and give the official line about mobile phone usage. JK stated however that if using a mobile phone in a busy area then he expected an employee would be addressed quickly regarding that. During his time as a health and safety representative he was unaware of any dismissals due to mobile phone usage or any significant sanctions for it being applied after the dismissal of the appellant.

It was the evidence of EM that all employees used their mobile phones in the distribution centre with the only exception being in the loading lane. It was his opinion that the location of the appellant in the distribution centre while using the mobile phone was a quiet area and not a loading area. He was unaware during his employment of anyone being disciplined for mobile phone usage in the distribution centre.

Determination:

The Tribunal is satisfied that it is a long-standing practice to use CCTV footage where available in disciplinary investigations and does not accept that its use was inappropriate in the context of this case.

The Tribunal is satisfied that it was the respondent’s policy that mobile phones not be used on the warehouse floor. However, the Tribunal is also satisfied that using mobile phones on the warehouse floor was not an uncommon practice. While the appellant had been noticed on two previous occasions it does not appear to be the case that he was ever actually warned about this behaviour. The managers in question reported his use of a mobile phone. However, the respondent simply put a note on his file. The appellant is therefore in a position where on two occasions he is noted by management to be using a phone but no action is taken on either occasion. The approach on these two occasions is consistent with the evidence of JK, a former employee, that, while a firm tone was taken in relation to phone use, there was quite a difference between the tone used and what happened in practice. JK told the Tribunal that what happened in practice was that there was quite a degree of tolerance to phone use. The warehouse trainer, JM, who gave evidence on behalf of the respondent, told the Tribunal that he had previously seen people using phones on the warehouse floor, although he had never seen them being used when driving equipment. However, the appellant on this occasion was not using his phone while driving his machine in the vicinity of any other employee. It was clear from the CCTV footage that he was operating in an area of the warehouse that was quiet at the relevant time.

The Tribunal is not satisfied that it was ever made clear to employees that use of mobile phones on the warehouse floor would be viewed as gross misconduct. The appellant was twice apprehended without so much as a warning being given. If it was not considered appropriate on the two earlier occasions to invoke the disciplinary process to give so much as a warning, it is difficult to see how it could be reasonably seen as gross misconduct on this occasion. This is not to say that an employer should not view infringements of health and safety rules seriously. Of course they should be viewed seriously. It is not, however, appropriate to tolerate a particular behaviour and then, without warning, penalise it with the most severe sanction. Nor is it to say that the use of moving equipment while using a mobile phone could not be viewed as gross misconduct.

The Tribunal is satisfied that it had been made clear to the appellant in the course of his training that he should not have been using a mobile phone on the warehouse floor, we are not satisfied that it had ever been made clear that there was a risk of dismissal for doing so. This is a significant unfairness.

The Tribunal is satisfied that the appellant was unfairly dismissed and accordingly upsets the recommendation of the Right Commissioner and upholds the appellant’s appeal.

The Tribunal is also satisfied that the appellant contributed to his own dismissal by the manner in which he approached the investigation, the disciplinary hearing and the appeal hearing in that he persisted, in the face of the evidence, in denying that he had used a mobile phone on the day in question.

The Tribunal is not satisfied that the appellant made any substantive or sufficient attempts to mitigate his loss and must take account of that failure in assessing the appropriate amount of compensation.

In the circumstances that Tribunal is satisfied that the appropriate remedy is compensation and that an award of €3,000 is just and equitable.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)