EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Gavin Wyse UD797/2012
MN589/2012
Against
Freefoam Plastics Limited
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 K.T. O'Mahony B.L.
Members: Ms M. Sweeney
Mr D. McEvoy
heard this claim at Cork on 26th March 2014, 25th, 26th March, 2015 and 26th May, 2015
Representation:
_______________
Claimant: Mr David Gaffney, Sweeney, Solicitors, Marlboro House,
Marlboro Street, Cork
Respondent: IBEC Cork, Knockrea House, Douglas Road, Cork
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent is a manufacturing company, having about 250 employees. The claimant commenced employment with the respondent company in 1997 as a general operative.
The claimant and another employee (AE) were the only two employees working on the night shift in the injection moulding section of the factory on 15 October 2011. In the early hours of 16 October, at around 1:25am, the claimant asked AE to drive him home because his children were hysterical as there was someone in their back garden. The claimant does not drive.They did not clock out or report that they were leaving and left the section unmanned with four machines running. The claimant was the lead operator on the night.
AE’s position was that on their way to his home, the claimant told him, “It is about a dog.” The claimant maintained that it was when he got home he realised the problem was that the family dog was missing/had been stolen. He checked the house and back garden. At the claimant’s request AE drove around to see if there was a group of lads hanging around. He was later joined by the claimant and they drove around some more but did not find the dog. The claimant’s partner returned from work at this stage and the claimant asked AE to drop him home and his partner would drop him back to work later. AE returned to work around 20 minutes later.
AE felt aggrieved that he had been told it was a family emergency. He would not consider a missing dog an emergency. As he was driving around looking for the dog AE was becoming distressed as there was no one manning the machines, which had been left running, and product could build up and damage the machines. He had never before in his 11 years working there deserted his position and he felt that he had been foolish and anxious that he would get into trouble. On Monday evening he sent an e-mail reporting the incident to HR Manager (HRM) and she asked the Production Manager (PM) to investigate the incident.
As part of his investigation PM took a statement from AE on 24 October and from the claimant on 25 October. AE updated his statement on 25 October to include the fact that the claimant had phoned him on the evening of 24 October enquiring as to whether he had been interviewed, what he had said and told AE that he might get fired and that he was going to say that he went home because there was an intruder in the house. The claimant also phoned PM the same evening expressing his concern that he might be fired because he was on a final written warning. PM assured him that the meeting was a fact finding meeting only. On 25 October the night shift supervisor confirmed to PM over the phone that the claimant had not contacted him during the night shift of 15 October to report leaving work oron returning to work. PM established that the absence was not recorded in the Night Shift Report or on the Time and Attendance Sheet.
In his statement of 25 October the claimant outlined that his daughter phoned him and was hysterical because there was someone in their back garden. He panicked and asked AE to drive him home as he does not drive. They left the premises, leaving three machines running and without contacting the night supervisor as he was in a panic or without contacting any of his superiors, as he did not have any contact numbers for them. It was an emergency. It was only when he arrived home he discovered that the problem was that someone had been in the back garden and taken the family dog, a Bijon worth €500. A seven foot wall surrounds the back and side of the garden and the dog could not get out. Neighbours told him that a group of lads had been at the back of the house. AE drove him in the direction in which they had gone but they did not come across them. His partner was returning from work at that stage and he asked AE to drop him back home and his partner would take him back to work later. On his return to work the claimant did not prepare a report on the incident as he wanted to report it “face to face” to PM. He had no idea how long he had been absent from the factory. He was concerned about his children. He had never previously left the factory. The dog turned up shortly after.
On the information gathered, PM considered that the claimant’s behaviour warranted further investigation. By letter of 25 October he wrote to the claimant suspending him on pay and outlining the allegations against him:
- abandoning the workplace taking the assistant operator on the shift with him, resulting in the injection moulding facility being left unmanned and with machinery running for a period of time,
- failed to notify the other senior member of staff on duty that night , namely the extrusion shift supervisor, of your absence and that your area would be unmanned,
- failed to report the absence when completing your shift report,
- failed to report the non-worked time to payroll.
There was a further allegation that he had tried to influence AE, a vital witness, on 24 October.
Immediately thereafter the claimant was absent on stress and the investigation was placed on hold until he was well enough to attend for the investigation to proceed. In the interim he was transferred from suspension on pay to the company sick pay scheme. In January 2012, based on medical advice, the claimant was fit to attend an investigation meeting and one was arranged for 31 January 2012.
At the investigation meeting on 31 January 2012, the claimant again confirmed that his daughter was screaming down the phone about the intruder and emphasised that he left the workplace because he was in a panic. He was on a final written warning at the time and would not have risked his job had he known that the problem was the missing dog. He was not aware that AE had sent an e-mail about the absence on 16 October and did not know that in phoning AE he was phoning a witness. He made the case that AE should have taken him aside on the occasion and calmed him down. He volunteered the information that his partner had made a 999 call to the Anglesea Street Garda Station that night/morning. The claimant could not say whether the Gardai had called to his house. He had been absent from work for 30 minutes, maximum. While he had not notified anyone that he was leaving on 16 October, on his way out he had looked through the roller shutters but could not see anybody. Following the investigation meeting, PM checked the CCTV footage covering the claimant’s leaving the premises and he had not look through the roller shutter.
Following the investigation PM concluded that there was sufficient evidence to substantiate the allegations and that the claimant had a case to answer. PM prepared an Investigation Report.
In mid February when the claimant’s doctor and company doctor found the claimant fit to return to work, his suspension was re-instated and a disciplinary hearing was conducted on 24 February 2012 by HRM and the Group Operations Manager (GOM). In the letter of invitation to the disciplinary meeting the claimant was advised that his behaviour might constitute gross misconduct with a potential sanction up to and including dismissal. Prior to the disciplinary meeting the claimant amended his statement of 25 October 2011. In the original statement he had stated. “There was no written report of the absence on the reports as I wanted to explain it face to face to (PM). When I mentioned it to PM I should have gone into more detail. But I didn’t and I regret it now.” The amended statement of 20 February 2012 stated:“ There was no written report of the absence on the reports as I wanted to explain it face to face to (PM), which I did but only in brief terms. I do not understand how this has become an issue. I mentioned the incident to (PM) on Wednesday 19th October and he said “I heard nothing about it. Not to worry.”
The disciplinary meeting was conducted by HRM and the respondent’s Finance Director (FD), who was substituting for the Group Operations Manager who was sick. The claimant was accompanied by his partner and a note-taker was also present. The claimant again asserted that his reason for leaving the workplace was a family emergency and that he would not have left the workplace had he known that the problem had been about a missing dog. He had not reported the absence in the night shift report because it in an “open forum” and the incident was personal. He had mentioned to PM on the morning of 19 October that he and AE had “left for a while on Saturday night” but PM had just passed it off and told him not to worry about it and that no other details were given by him or sought by PM. The claimant specified that he had made this communication to PM on 19 October under a CCTV camera. He also told them that he had mentioned to Employee X that he was surprised that PM had passed it off and they could check with Employee X. In a subsequent interview Employee X recalled that the claimant had mentioned a conversation he had with PM about a family emergency but he could not remember when the claimant had passed the comment, whether it was the following week or the following month. The claimant’s position was that he did not have the phone numbers of any of his superiors so he could not contact them on the night. HRM’s position was that the phone numbers are available by the phones. The respondent could not confirm the alleged communication of 19 October as the CCTV footage was no longer available, some 18 weeks later. The claimant’s partner confirmed at the meeting that the Gardai had not called to the house as she had informed them that it was no longer necessary.
Following a number of consultations between them, HRM and FD concluded that the claimant’s behaviour on the night constituted a serious breach of the trust and confidence necessary in the employment relationship and amounted to gross misconduct warranting summary dismissal. The reasons for dismissal are set out in the letter of dismissal of 21 March 2012 and can be summarised as follows:
- He had abandoned the injection moulding building while on the night shift of 15 October taking the only other person working with him.
- He had failed to report to a senior person, in particular the extrusion shift supervisor, that he was leaving.
- He had left the machines running and unattended in an open building, posing a serious health and safety risk should an emergency situation arise or someone wander into the building.
- The CCTV footage showed that the claimant had not looked through the roller shutter door as he was leaving on the night/morning.
- He had failed, in his duty as lead operator on the night, to report or record that the only two employees on the shift were absent; the excuse that the reports are an open forum and this was a personal matter was not acceptable,
- The respondent did not accept that PM would overlook the situation had he allegedly been made aware of it on 19 October and HRM had since confirmed with PM that the first time the claimant had mentioned the absence to him was in his phone call to PM’s home on the night of 24 October.
- The respondent did not accept that PM would overlook such a conversation given the contents of AE’s e-mail, received on 17 October. Nor could it accept the claimant’s contention given that it was raised some 18 weeks after the alleged conversation.
- The claimant had not produced a statement bearing on the 999 call on the morning of the incident.
- His failure to swipe out of the building or report the absence resulted in being paid overtime at a premium time for work not done and had failed to report this overpayment.
The respondent also found it unacceptable to try and shift the blame onto AE.
It was clarified in the letter of dismissal that the incident on its own amounted to gross misconduct and that his previous disciplinary record did not have any bearing on this sanction.
The claimant’s appeal was heard on 5 April. The Managing Director (MD) was the appeals manager, the Group Operations Manager was present as well as a note taker and the claimant was also accompanied. MD found that the incident of 15 October in and of itself amounted to gross misconduct given the seriousness of the potential consequences that could have resulted from abandoning the injection moulding section and leaving the floor unmanned with running machines. Once the claimant’s panic abated, and in particular on his return to work, he should have reported the matter and if he regarded it as a private matter he could have done so by phone call or e-mail. Following the appeal hearing MD put the claimant’s precise assertions about his having informed PM of the incident on 19 October and he categorically stated that it had not been raised by the claimant at any time during his shifts on 19-21 October and PM said he would have been very alert to any such communication as he was aware that a complaint had been received about the incident. PM confirmed this in his evidence to the Tribunal. Confirmation that a 999 call had been made at 1.32.24am on 16 October and transferred to the Gardai was produced at the hearing. MD upheld the decision to dismiss.
MD’s evidence to the Tribunal was that he felt that the claimant was not altogether up front. He was uncomfortable with someone running out the door. The claimant could have returned to work after twenty minutes but did not. He failed to report the absence in the shift report or in an e-mail to HRM. MD thought that the claimant was hoping that it would disappear. MD felt it would be remiss of him to allow such a culture to exist. Significant and costly damage could have occurred. Circuit boards have exploded. He found no reason to overturn the dismissal.
PM’s evidence to the Tribunal was that he first became aware of the incident on 17 October when HRM told him about it and he read AE’s e-mail. There would have been no problem in his leaving had he told someone senior at the time. The risk that a machine would develop a problem was not low and it could have serious repercussions. PM had concerns about the whole incident including the claimant’s failure to contact anyone or document the absence. The claimant was the team leader on the night shift and the senior person on the shift. It was a serious breach of health and safety regulations to leave the section unmanned with four machines running. Whilst he had noted the claimant’s position in his statement of 25 October and at the investigation on 31 January that he had allegedly mentioned his absence to him on Wednesday (19 October), PM’s position was that as investigator it was not his role to argue or challenge the claimant. PM denied that the absence had ever been mentioned to him or that he told the claimant not to worry about it, as alleged by the claimant in his amended statement, had alleged some four months after the incident.
FD, in his evidence to the Tribunal, conceded that he would have done the same in a family emergency but when the claimant discovered that the problem was a missing dog and not a family emergency, he should have returned to work. AE had returned to work after twenty minutes but the claimant stayed at home for another forty to forty-five minutes after that. The claimant did not report the absence. He should have notified the respondent once it was established that it was not an emergency when he arrived at his home. He could have sent an e-mail to PM or HRM to report the incident but did not. The claimant had no role in calming his children while he was out looking for the dog. In the injection moulding process it is vital to ensure that no blockages occur as the build up of material could result in serious consequences for the respondent. FD felt the claimant had not been co-operative.
In his evidence AE told the Tribunal that he agreed to drive the claimant home. They left the workplace without clocking out or telling anyone and machines were left running. Unauthorised absence is a punishable offence. On the way to his house the claimant told him their dog had been stolen. AE expected that he would just drop the claimant and return to work but having checked his home the claimant asked him to drive around looking for a group of lads who might have the dog. The night supervisor was standing outside on his return to work and saw him. AE was distressed because machines could jam up and he was aggrieved because he had been tricked into driving the claimant home; he felt that a missing dog was not an emergency. The following evening, he sent an e-mail to HRM reporting the incident. He did not fill out an incident report form because his writing was not good and it was easier for him to send the e-mail. He was on a week’s holidays thereafter and on his return made a statement on 24 October. AE admitted to having been a being demoted in the past. He had reported “a few” incidents over the years; he had problems. He is now a team-leader, but it is not the claimant’s former position.
The claimant’s evidence was that he was very loyal to the company. His dismissal was out of proportion to what had happened. He had not reported the absence to PM immediately because he had worked 72 hours that week and was very tired but he reported it to him on the morning of 19 October as PM was walking out the door the claimant said, “I had a bit of an emergency on Saturday night and I left for a while.” PM replied, “I did not hear anything about it. Don’t worry.” He did not return to work with AE because he wanted to stay with his children and partner to calm them down. The night shift supervisor saw him as he returned to work. Employees often go to the shop and do not clock out.
Determination
The test for determining the fairness or unfairness of a dismissal was set out by the Employment Appeals Tribunal in Bunyan v. UDT (Ireland) Ltd. [1982] ILRM 404 at p. 413 as:
[T]he fairness or unfairness of the 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 Tribunal therefore does not decide the question whether or not, on evidence before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.
In this case there was agreement on the central facts that the claimant, who was the lead operator on the night shift of 15 October, abandoned the section taking the only other employee working there with him, leaving four machines running and unattended and failed either to notify the night supervisor that they were leaving or to report it in the night report. Whilst at least one member of management had a level of understanding for an employee who had a family emergency, his evidence was that the claimant’s continued absence once he realised the nature of the problem and his failure to report the absence once he returned to work were fatal for him.
There was controversy between the parties as to whether the claimant had reported the incident to PM, three days later, on Wednesday 19 October. PM’s position was that he had already been aware of the issue as HRM had passed him AE’s e-mail and he forcefully denied that the claimant had mentioned his absence to him on 19 October. PM had noted the claimant’s assertions during the investigation that he had mentioned it to him on 19 October but PM’s position was that as investigator it was not his role to argue or challenge the claimant. This is incorrect. The role of an investigator is to establish the facts of the alleged wrongdoing including challenging the veracity of the interviewee’s statements. However, this failure does not go to the core of any of the four issues being investigated, as set out in the letter of 25 October, and does not taint the procedures as a whole. The references, both in his statement of 25 October and in the investigation interview, to having mentioned the absence to PM on 19 October were of the briefest nature. The Tribunal is satisfied that the nature, duration and significance of the absence and in particular the facts that he took the only other employee working in the section with him, leaving the floor unmanned with four machines running, were not communicated to PM on 19 October.
Following the disciplinary meeting and the appeal hearing, HRM and MD respectively questioned PM as to whether the claimant had informed him on 19 October about his absence on 16 October. Whilst it would have been best practice in the particular circumstances to get a written statement from PM the failure to so do does not render the procedures unfair.
The Tribunal notes that there were a number of inconsistencies in the claimant’s position, including inter alia that he would not have left the workplace for a missing dog yet on realising the nature of the problem he failed to return to work or to ensure AE did; and, having left work because his children were hysterical the claimant none the less left them to go search for the dog and returned home to them when his partner had returned home.
The letter of dismissal clarifies that the dismissal was for the stand-alone offence of 15/16 October and was not related to the claimant’s earlier disciplinary record. In the letter of invitation to the disciplinary meeting the claimant was advised that his alleged behaviour might constitute gross misconduct with a potential sanction up to and including dismissal and there was no reference therein to his pre-existing disciplinary record. The Tribunal cannot accept that mentioning the final written warning, whether still in effect or not, during the disciplinary hearing was a fundamental flaw.
Applying the test set out in Bunyan the Tribunal finds that the decision to dismiss the claimant was in the circumstances that of a reasonable employer. For the reasons outlined the Tribunal is satisfied that the dismissal was substantively and procedurally fair and the claim under the Unfair Dismissals Acts, 1967 to 2007 fails.
Section 8 of the Minimum Notice and Terms of Employment Acts 1973 to 2005 provides that there is no entitlement to notice where an employee is dismissed for misconduct. Accordingly, the claim under those Acts is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)