ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000273

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 10/03/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance at Hearing:

Complainant’s Submission and Presentation:

(1) Unfair Dismissal:

On behalf of the Complainant, his Trade Union representative made submission at the Hearing under the following headings, in support of his claim of unfair dismissal:

1) No substantial grounds justifying the dismissal:

• The Complainant was dismissed for "knowingly refusing to follow reasonable instruction from his employer" and for "continually refusing to wear PPE as in accordance with his contract of employment."

• There is no doubt an employee may be disciplined or dismissed for refusing to comply with a reasonable or lawful order. However, the instruction given to the Complainant in this case to wear Personal Protection Equipment (PPE) which he considered defective was neither reasonable nor unlawful.

• The circumstance involved in this case does not constitute substantial grounds for justifying the dismissal.

2) The condition of the Personal Protective Equipment:

• The Complainant contends that the PPE provided was not fit for purpose. The wet gear provided had holes in it and was very dirty. The hard hat was dirty and the shell was damaged and had been stored where there were bird droppings and rat poison.

• The defects in the PPE were brought to the attention of the employer, who did nothing about them.

• The "Guide to the Safety, Health and Welfare at Work (General Application) Regulation 2007" states, in guidance in respect of Regulation 66 of those Regulations, that "The wearer should check the PPE and should not use it if found to be defective in any way."

• It was contended, therefore, that the Complainant acted in compliance with his statutory duties in this case.

3) The duties of the employer in respect of safety, health and welfare at work:

In his submission at the Hearing, the Complainant's representative set out the following duties of the employer in respect of safety, health and welfare at work, as set out in the "Guide to the Safety, Health and Welfare at Work (General Application) Regulation 2007":

• to ensure "the adequacy of the personal protective equipment". (Regulation 64 (1)(d))

• to ensure that "the use of an item of personal protective equipment provided by the employer.... is normally confined to one employee." (Regulation 65 (1)(a))

• to ensure that "any personal protective equipment provided by the employer....is maintained at all times in good working order and in a satisfactory hygienic condition by means of any necessary storage, maintenance, repair or replacement." (Regulation 66 (1)(d))

In addition, the Complainant's representative referred to Section (27(3) of the Safety, Health and Welfare at Work Act, 2005 provides that an employer "shall not penalise or threaten penalisation against an employee" for acting in compliance with statute, performing any statutory duty, making a complaint relating to safety, health and welfare at work or for taking steps to protect himself from danger.

It was contended on behalf of the Complainant that the employer in this case breached all of the above mentioned statutory duties.

It was further contended that the employer in this case took no reasonable precautions/actions or reasonable steps whatsoever to ensure the satisfactory condition of the PPE beyond an inspection carried out by the Respondent's director which found that the PPE was in a satisfactory condition.

4) The investigation:

• The investigation process carried out by the Respondent's director was unfair and unreasonable.

• The Remit of Investigation assumed the truth of the allegation which the investigation was to examine and it was therefore impossible for any investigation established on such a basis to be fair.

• Given the employer's decision to conduct a two-stage process, involving an investigation followed by a disciplinary hearing, it was inappropriate for the investigation report to make findings other than findings of fact.

In summary, in relation to the investigation carried out by the Respondent, it was contended on behalf of the Complainant that he was not afforded fair procedure.

5) The dismissal:

It was contended on behalf of the Complainant that, given the inadequacy of the investigation, it did not provide a sufficient foundation for a fair dismissal.

6) The appeal:

The appeal of the decision to dismiss was conducted by the Respondent's accountant. It was contended on behalf of the Complainant that the appeal was not fairly or reasonably conducted and that the appeal officer's finding on what he described as "the core point" was manifestly wrong.

It was contended that this was indicative either of a carelessly conducted or an outright prejudged appeal, neither of which would comply with the fairness requirements necessary in such circumstances.

(2) Payment of Wages Claim:

It was contended on behalf of the Complainant that he was owed a week's wages at the time of the dismissal. This was due to him being paid, as is common, a week in arrears.

Respondent’s Submission and Presentation:

(1) Unfair Dismissal:

In response to the Complainant's claim that he was unfairly dismissed, the Respondent made the following submission at the Hearing:

• The Respondent maintains that the Complainant was dismissed in line with Section 6(4)(b) of the Unfair Dismissal is 1997, which provides "the dismissal of an employee shall be deemed for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from one or more of the following..... (b) the conduct of the employee".

• The Complainant had been employed by the Respondent for a number of years and consequently, the decision to dismiss was not taken lightly.

• The Complainant's dismissal was effected following an extensive investigation, disciplinary and appeal process under which he was afforded full rights to natural justice and fair process.

• It was contended that the Respondent acted fairly in accordance with current employment legislation in the investigation and subsequent disciplinary/appeal process undertaken with the Complainant

• The process undertaken with the Complainant comprised of an investigation, disciplinary hearing and appeal, each of which was conducted fairly and sensitively. In particular, to ensure procedural fairness, the appeal was carried out by the Respondent's accountant. The Complainant was represented during the process by his Trade Union.

• The sanction of dismissal was fair, reasonable and proportionate in all of the circumstances.

• The health and safety of its staff is a key issue for the Respondent, as is the provision of PPE.

• The Complainant was fully aware of the Respondent's policy and attitude toward health and safety, which could be evidenced by the detailed correspondence presented at the Hearing in support of the submission.

• The Safety, Health and Welfare at Work Act 2005 puts an onus and duty of care on both the employer and the employee to keep employees safe. The Complainant was refusing to comply with the reasonable request of his employer to wear basic PPE, which is both a statutory and contractual requirement.

• The Complainant's actions were deemed to have represented serious/gross misconduct due to his actions of exposing himself to a health and safety risk at an unacceptable level in a hazardous work environment. It was not a once off occasion, but a repeated and determined breach by the Complainant of his obligations towards his own health and safety. It was an option for the Complainant to where the PPE under protest, yet he did not do so.

• The Respondent therefore contended that the sanction of dismissal was fair, reasonable and proportionate in all circumstances.

In summing up, the Respondent denied that the Complainant was unfairly dismissed from his employment. Rather the Respondent contends that the Complainant was fairly dismissed for serious/gross misconduct in accordance with the Complainant's contract of employment and in line with Section 6(4) of the Unfair Dismissals Act 1977.

The Respondent also stated they were satisfied the Complainant was afforded a full and fair disciplinary process prior to his dismissal in line with the principles of natural justice and the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000)

(2) Payment of Wages Claim:

The Respondent rejected the Complainant's claim that he was owed a week's wages and/or pay in respect of untaken annual leave. The Respondent contends that the Complainant was dismissed summarily and was paid up to the termination date of 28 August 2015.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Issues for Decision:

There were three issues for decision in this case:

1. Was the decision to dismiss the Complainant fair ?
2. Is the Complainant’s claim for unpaid wages valid ?

Legislation involved and requirements of legislation:

The following pieces of legislation are involved in this case: the Unfair Dismissals Act 1977 and the Payment of wages Act 1991

Decision:

(1) Unfair Dismissal:

Having carefully considered all the evidence adduced in this case, I believe there to be two specific aspects of the claim which require determination, namely: (1) the application of the disciplinary procedures and (2) the appropriateness or proportionality of the sanction.

(1) Application of the disciplinary procedures:

The first element of the disciplinary procedures to be considered is the investigation carried out into the Complainant's alleged refusal to wear the PPE provided.

Having carefully considered all the evidence adduced in relation to the investigation, I find that it was seriously lacking in procedural fairness and appropriateness. This is primarily based on the role played in this process by a director the Respondent, who in reality appears to be the principal party in the day-to-day running of the Respondent's business.

This director was the person who initially requested the Complainant to wear the PPE in question. In the background section of the Investigation Report, this director is also identified as having carried out an inspection of the equipment in question on 16 July 2015. The result of that inspection was that the equipment in question was found to be "fully compliant with all relevant European Community Directives and the Safety, Health and Welfare at Work Act, 2005".

The same director then conducted the investigation that led to the disciplinary hearing. I am strongly of the view that his involvement in the matter up to that point, particularly his having conducted the inspection of the equipment, rendered him a wholly inappropriate party and to conduct this investigation.

I further note in this regard that the director, referred to above, played an ongoing role in the process and was the author of significant correspondence to the Complainant at practically all stages of the disciplinary procedures. This included: the initial letter of 24 July 2015 in which the Complainant was informed about the possibility of the disciplinary process being invoked, the Invitation to Disciplinary Meeting letters of 14 and 21 August 2015 and the letter of 20 August 2015 containing the outcome of the Disciplinary Hearing. The latter was signed by this director, even though this Hearing had been conducted by the Respondent's Secretary.

In addition, I note that the Complainant's representative has raised serious questions about certain aspects of the appeal stage in the process. It would appear from the evidence that the appeal was conducted on an ex parte basis. While this is not necessarily a defect per se in the process, it is clear that certain new evidence (i.e. the purchase of new hard hats on 1 July 2015) was presented to the Appeals Officer by the Respondent and was included in the appeals decision, without the Complainant and/or his representative, who accompanied him at the meeting, being provided with an opportunity to consider/respond.

Having carefully considered all the above, I find that the investigation process conducted by the Respondent in this case was seriously flawed. Consequently, I cannot accept the Respondent's contention that the process was fair and/or independent, or that it was conducted in line with the principles of natural justice or the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000).

(2) the appropriateness or proportionality of the sanction:

In a context where the Complainant had no previous disciplinary record and, more importantly, had no previous issue in relation to the wearing of PPE, it is difficult to comprehend how the refusal to wear particular items of PPE, for the reasons stated, on the date in question in July 2015, might have led to his dismissal. The photographic evidence presented at the Hearing provides some validation of the Complainant's contention that the equipment in question, particularly the hard hat, may not have been fit for purpose.

As was contended by the Complainant's Trade Union representative at the Hearing, this matter could have been easily and simply resolved, without either party compromising the position, by the purchase of a new hard hat. In this regard, I note the reference to the purchase, by the respondent, of new hard hats 1 July 2015.

However, the evidence in this regard shows that the first mention of this purchase appears in the letter from the Appeals Officer, dated 2 October 2015, which set out the result of the Complainant's appeal of the decision to dismiss. It is noted that there is no reference to the purchase of new hard hats in the Investigation Report dated 13 August or in the letter of dismissal of 28 August 2015.

In my view, the omission of any reference to the purchase of new hard hats from these two critical documents, casts serious doubt on the validity of the assertion that such purchases were made on the date suggested.

Consequently, against the background set out above, it is difficult to understand how this issue became a disciplinary matter in the first place, let alone led to the Complainant's dismissal. The letter of 24 August 2015, setting out the result of the Disciplinary Hearing, states that consideration was given to a lesser sanction. However, it is further stated in that determination that as this was "not simply a once off refusal (with it being worn in some way under protest when instructed to do so). This was a repeated refusal to wear what is a vital health and safety tool". Based on this the Respondent considered the ultimate sanction of summary dismissal to be warranted in this case.

Having carefully considered all the evidence adduced, I disagree with the above finding in that I believe the incident in question was more akin to a "one-off incident". I am further of the view that summary dismissal was a totally disproportionate sanction to apply in this instance. Evidence presented at the Hearing would suggest that perhaps other factors of an industrial relations nature were also at play between the parties at this point in time, which may have influenced the actions/decision-making on all sides. However, based on the facts of the case before me I find that the decision to dismiss was inappropriate.

Consequently, taking all the above into consideration, I find the dismissal to be unfair and I award the Complainant the sum of €14,000.00 (including notice) in compensation under the Unfair Dismissal is Act, 1977. This figure is calculated on the basis that the Complainant was working a 24-hour week at, and for a significant period prior to, the time of his dismissal.

(2) Payment of Wages Claim:

Having considered all the evidence presented in this case I uphold the Complainant's claim for one week’s unpaid wages.

In this regard, I work the Complainant the sum of €356.88 in respect of this claim.

Dated:   11 May 2016