UD1739/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1739/2014

CLAIM(S) OF:                                                                                

Joseph Doyle – claimant                                                                   

against

Hoyer Ireland Limited – respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms N. O'Carroll-Kelly BL

Members:     Mr R. Murphy

                     Mr P. Trehy

heard this claim in Dublin on 28^th January 2016 & 21^st April 2016

Representation:

_______________

Claimant(s):                 Mr James Doran BL instructed by Ms Mary Minchin, Butler Monk Solicitors, DMG Business Centre, 12 Camden Row, Dublin 8

Respondent(s):            Mr John Redmond IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2

The determination of the Tribunal was as follows:-

The Tribunal has carefully considered the evidence given over the two-day hearing together with the documents submitted.

The claimant commenced employment as a fuelling technician with the respondent 2005. On the 28^th April, 2014 the claimant was found to be using his mobile phone whilst refuelling an aircraft. Specifically, he says he was refuelling the aircraft when the mobile phone in his pocket began to ring. He did not know the phone was in his pocket. He released the dead man’s switch, stopping the flow of fuel, walked about 20 to 30 feet away from the fuel nozzle and answered the call. It was his partner. He told her he couldn’t talk and that he shouldn’t have his phone on him in the refuelling area. He hung up. The call lasted no more than 20-30 seconds. He returned to the nozzle and resumed refuelling. The claimant is adamant that he was not in the refuelling zone when he answered the call. The respondent’s evidence differs somewhat. Their evidence was that the claimant was in the act of refuelling when he answered the call. They, at the time of the investigation, secured two witnesses statements to that effect. The claimant accepts that he should not have had his phone with him. He stated that he would never have intentionally taken it with him. He also accepts that it is a breach of the rules.

Both witnesses called on behalf of the claimant also stated that they would never bring their mobile phones with them when refuelling for two reasons. Firstly, because it is in breach of the rules and secondly, because it is so dangerous. The Tribunal notes that it was not the answering of the phone that is the breach but having the phone in his possession at the time of refuelling.

The claimant was suspended on full pay pending an investigation. In the very recent decision of Bank of Ireland v Reilly [ unreported ][2015 IEHC241 Noonan J stated:

The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future. As noted by Kearns J in Morgan v Trinity College, there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.

Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employers own business and reputation which the conduct in issue is known by those doing business with the employer. In general it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.

By majority the Tribunal is satisfied that based on the severity of the potential consequences the respondent was justified in suspending the claimant on full pay pending a full investigation.

TV was charged with the task of investigating the matter. He interviewed the two individuals who saw the claimant on the phone. He asked them to submit a statement in relation to the matter. They did so. (The issue in relation to the admissibility of these statements will be addressed later in this determination).

The claimant then began to submit medical certificates stating he was suffering from stress and anxiety. The certificates were submitted from April – October, 2014. However, on the 26^th June, 2014 he attended at the respondent’s occupational health physician. On the 27^th June, 2014 Dr O B’s report stated that the claimant was fit to attend meetings in relation to the disciplinary process. The claimant never submitted a certificate to the contrary. In the absence of such medical certificate the claimant was obliged to attend meetings in relation to the disciplinary process.

The claimant did not engage in the investigation process. He was invited to attend an investigation meeting but failed to attend on two occasions, the 4^th July, 2014 and the 21^st July, 2014. In all, the investigation meeting was adjourned on six occasions to facilitate the claimant’s attendance. He did not participate in the disciplinary process having failed to attend for meeting on the 9^th and 19^th September, 2014. He did not appeal the decision to dismiss him.

The claimant has an obligation to exhaust the internal disciplinary process prior to lodging a claim with an external body. By majority the Tribunal is satisfied that the claimant failed to engage in any part of the disciplinary process.

An issue arose during the hearing in relation to the admissibility of the two witness statements. The respondent stated that one or both of the authors of the statements would be called to give evidence, however, they did not. On that basis the Tribunal is satisfied that the witness statements are not admissible for the purpose of this hearing. However, at the time SD was reviewing the investigation file and conducting the disciplinary hearing neither of those statements was in issue. If the claimant had a difficulty with the statements, the authors of the statements or the factual content of them, that was the time to raise it. He did not. By virtue of his silence on the issue, SD was entitled to rely on them. The fact that the statements were not admissible for the purpose of this hearing does not make SD decision to dismiss the claimant null and void.

Proportionality:

The role of the Tribunal is not to substitute itself for the employer to determine the sanction to be imposed but to examine if the facts were so serious as to merit disciplinary sanction and whether the sanction imposed was out of proportion to those facts.

After hearing all of the witnesses in the case, including the claimant, one constant prevailed. Nobody is allowed to have a mobile phone in their possession when in the refuelling zone. The potential consequences, supported by science, could be catastrophic, if fuel were to ignite and passengers were onboard the aircraft. The fact that passengers, pilots and ground staff use their phones in the vicinity of the aircraft but outside the refuelling zone is not a relevant fact that this Tribunal has to consider.

The claimant during the course of this hearing admitted having his phone with him in the refuelling zone and accepts that he should not have had. He, when first questioned by TV about the breach, denied the allegation. That denial was the only role the claimant had in the entire disciplinary process.

Based on the claimant’s knowledge of the rule, his acceptance that he breached the rule, the possible consequences of that breach and his non participation in the entire disciplinary process, by majority the Tribunal finds that the sanction was proportionate to the breach.

Dissenting Opinion by Mr Patrick Trehy:

On the 7^th May 2014 the claimant was called into the Station Manager’s office in connection with an alleged complaint by a client airline employee in relation to the re-fuelling of one of their planes at Dublin Airport on the 28^th April 2014. During this meeting no allegations of impropriety were put to the claimant and the Station Manager concluded the meeting by stating “ok I will get back to [the client airline]”.

On the 12^th May 2014 the claimant wrote to the station master alleging various irregularities regarding the meeting held with the Station Manager. Amongst the issues raised were;

1. His basic rights were denied in that he was not allowed to have a representative of his choice due to the Station Manager alleging a conflict of interest.
2. He was not allowed to question any witnesses.
3. He was not allowed to ask questions of the Station Manager.
4. Documents presented to him by the Station Manager amounted to a misrepresentation of the facts.
5. He pointed out that he had previously complained of bullying by the Station Manager which complaint was currently in being, the complaint having being lodged with the LRC.

The claimant copied the UK head office of the respondent company.

The Station Manager sent a letter on 14^th May suspending the claimant on basic pay pending the completion of an investigation.

A further letter issued on 5^th June 2014 requesting the claimant to come to an investigation meeting on 24^th June 2014.

The claimant’s representatives wrote to the Station Manager on 26^th June 2014 complaining strongly about the treatment of the claimant and the urgency of sending him to a company doctor.

The claimant attended the company doctor on the 26^th June 2014 and the opinion was as follows:

1. He has the ability to understand the purpose of the meeting.
2. He has the ability to distinguish between right and wrong.
3. “He clearly should be able to seek assistance from a friend or advisor to accompany him and assist him in the process.”

There were three letters sent inviting the claimant to attend disciplinary investigation meetings which made clear that the claimant was not allowed have an external representative accompanying him. The letter of 11^th July specifically mentions that the claimant’s external advisor should not attend. This was against the advice of the company doctor who stated in his opinion that the claimant should be able to seek assistance from a friend or advisor.

A letter from the claimant’s advisor on 21^st July 2014 stated that the Station Manager’s entrenched position at the LRC resulted in the claimant’s health deteriorating.   His advisors further stated that they had been put on notice of this possibility. It was indicated that the claimant would not participate in any further meetings until this was approved by his doctor. His doctor recommended him to do so.

Three further letters issued from the Station Manager to the claimant (not his advisor) and the claimant’s advisor responded on the 5^th August 2014. Among the points noted were;

1. We refer to your letters …etc. Once again it is evident that you choose to select your correspondence and to whom you address it to. It is indeed incredulous as it is outrageous that you are refusing to deal with the contents of our letters, instead you are raiding (riding) rough shot (shod) over our client’s rights.”  
2. We advised you of the damage you are causing him which is compounded by your refusal to respect his family doctor’s opinion... Your continued refusal to afford him his choice of representation … Furthermore you are refusing to provide him with any documentation regarding the allegations…, you have refused to step aside to allow an independent party investigate all the issues.., you refused to engage in the conciliation process ….. …., confirming that what this is, corporate bullying ….
3. We would ask you to stop contacting our client while out on sick leave as this is simply harassment.

No response was ever received to this letter.

By letter dated the 18^th August 2014 directed to the claimant the Station Manager indicated that in the absence of the claimant he had concluded his investigation and the matter was moving to a disciplinary hearing to be conducted by the Transport Manager.

The Transport Manager wrote to the claimant on the 28^th August 2014 requesting that the claimant attend a disciplinary hearing.

By letter dated the 11^th September 2014 the Transport Manager wrote directly to the claimant allegedly setting out the outcome of the disciplinary hearing. This letter noted that prior to the hearing the company had received a letter from the claimant’s doctor indicating he was unable to attend. It also noted that a firm of solicitors had written to the company on the claimant’s behalf and requested that the company take no steps that would be detrimental to the claimant. Despite these communications the Transport Manager decided to review the “evidence” and proceeded to set out various “facts” which the claimant was never allowed challenge. The hearing was adjourned to the 19^th September 2014 and the claimant was invited to attend should he wish to make oral submissions or submit written submissions. No invitation for a representative to attend was extended.

The hearing of the 19^th September proceeded in the absence of the claimant or his chosen representative. The claimant was summarily dismissed and was offered an appeal which would be in the nature of a rehearing. The claimant’s solicitor wrote to the company’s solicitor on the 8^th October indicating that the claimant was prepared to participate in the appeal once they had an assurance that the appeal would be a bona fide process providing for proper representation with the right to challenge evidence and witnesses as required to ensure that his rights to natural justice would be respected. By letter dated the 20^th October 2014 the company’s solicitor responded that at any rehearing the claimant could only be represented by himself, a colleague, a shop steward or a trade union representative.

Any independent review of the procedures and processes must conclude that there were serious irregularities in the methodology adopted by the Station Manager which include inter alia:

1. His determination to oversee the process against the claimant while the claimant had laid a charge of bullying against him prior to the allegation of the 28^th April 2014 being presented. This was clearly a conflict of interest.
2. The constant refusal by the Station Manager to allow the claimant be represented by a representative of his choice even when this was recommended by the company doctor is incredulous and gives weight to the perception that the Station Manager was not impartial but actually biased in his dealing with the claimant.
3. The Station Manager’s refusal to allow a particular representative attend on the claimant’s behalf as this would amount to a conflict of interest is equally incredulous given that the Station Manager could not see any conflict in his own position.
4. He should have stepped aside and allowed someone else to investigate this matter as was requested by the claimant’s representative. This would have removed a lot of obvious irregularities and the fact he did not adds additional weight to the perception that the Station Manager’s main priority was to deal with the claimant himself for whatever reason.
5. At the outset the Station Manager’s inference on the 7^th May that he had to revert to Aer Lingus on the details of the complaint was a clear misrepresentation as he was in possession of the salient facts of the allegation as per the email of the 28^th April 2014.
6. If the Transport Manager was truly independent he would have clearly noticed the obvious conflict of interest which prevailed throughout the file and revisited all matters.   He chose to ignore the obvious shortcomings in the Station Manager’s methodology and proceeded as if the Station Manager’s file contained no irregularities and no conflict of interest which was patently obvious.
7. The Transport Manager continued in the same vein, disallowing any representation by a person of the claimant’s choice and given undue weight to two statements which the claimant had stated was a factual misrepresentation of the facts. The Tribunal has not admitted these two statements and the reliance of the Transport Manager on these statements which the claimant was not allowed challenge is very disconcerting.
8. It appears that the statement of a witness was actually composed by the Station Manager and counter signed by the witness. The witness did not appear at the Tribunal and the composition of the statement by the Station Manager would in my view have necessitated its challenging by the claimant. This should have been obvious to the Transport Manager.  
9. Significantly the claimant was dismissed “for using his mobile phone while refuelling an [airline’s] aircraft on the 28^th April 2014”. The claimant stated that he answered his mobile having suspended the refuelling and moved to an unrestricted area. There was no contradictory evidence offered. In fact the Station Manager in cross examination stated that he did not establish how near the claimant was (to the fuelling) and that “he could have been further away.”

Conclusion:

In my opinion the whole procedure was so tainted with irregularity, impropriety and other agendas that this dismissal must be considered as unfair dismissal.

End of Dissenting Opinion

Determination:

In all the circumstances by majority decision the Tribunal finds that the claimant’s claim fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)