ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002527

Complaints for Resolution:

Date of Adjudication Hearing: 13/07/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1997 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The respondent contends that substantial grounds existed which justified dismissal.   The company is a leading edge company providing innovative solutions for the disposal of a diverse range of waste.   The customer base is wide and varied. At the time of the complainant’s dismissal, the company had a contract for Irish Rail. The complainant worked as a Field Services Operative. He was inducted and trained in all the company policies and procedures in relation to his employment.

The incident which gave rise to the claimant’s dismissal was a very serious breach of safety procedures, which was the specific cause of a complaint from the respondent’s client, Irish Rail.   The representative of Irish Rail, Kent Station informed the respondent that the station manager in Mallow had stopped an employee (the complainant) who had crossed over 3 live railway lines whilst he was making his way to the toilet. The employee in question had not been wearing high vis clothing. Furthermore, the employee had crossed back over the 3 live railway lines after being reprimanded and warned not to do so. This was considered a major incident from a health and safety point of view.   Irish Rail advised that the complainant would not be allowed back on site as he had crossed the lines again on the way back after being warned not to do so, that the complainant was banned from all Irish Rail sites and his PTS card was blocked. Further the incident was considered so serious, that the respondent was put on a final warning as a company across all Irish Rail sites and the customer was also going to use the footage of the incident as a case study of ‘what not to do’ in their Health and Safety training.

An investigation was carried out by the respondent, and a subsequent disciplinary hearing was held.

He was advised on 8^th December 2015 that the decision was taken to dismiss him on the grounds that

1. He had wilfully breached safety rules, notably when returning across the live lines

2. He had deliberately refused to obey a legitimate, lawful and reasonable work instruction, again notably when returning across the live lines.

3. His conduct had brought the respondent into dispute.

The complainant’s employment was thus terminated and he was paid the statutory two weeks notice in lieu. He was advised of his right to appeal. He did not appeal the outcome.

It is the respondent’s position that under the Unfair Dismissals Act 1977-2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee. Following a detailed, fair, transparent and thorough investigation/disciplinary process with the complainant and his chosen representative, the complainant was adjudged to have wilfully breached safety rules, deliberately refused to obey a legitimate, lawful and reasonable work instruction and to have brought the company into disrepute. His actions amounted to gross misconduct and the principles applied in cases of gross misconduct have been clearly established over time (Looney & Co. Ltd v Looney, UD 843/1984). Other cases were cited in relation to destruction of trust and confidence (Knox Hotel and Resort Ltd UD 27/2004), and in relation to full contribution to dismissal (Murray v Meath County Council UD 43/1978).

Decision:

CA-00003534-001

The complainant was dismissed following a comprehensive investigation and disciplinary process.     I note he expressed remorse and cited mitigating circumstances in regard to the phone call he received on the morning of the incident.   While there was an early reference to this in the respondent’s investigation, it did not seem to be taken into account in the ensuing process.   The respondent has rightly pointed out that the issue of health and safety is of paramount importance in the industry. From the evidence, it might even be adduced that the incident may have affected their contract with the client, and this may have mitigated against the complainant.                                                               Given all the circumstances of this case, I find that the penalty of dismissal was harsh and in this case a written warning would have been more reasonable.                                                                           I uphold the complainant’s claim that he was unfairly dismissed.   The remedies of re-instatement or re-engagement are not appropriate in the circumstances where the respondent has lost trust and confidence in the complainant.   I have considered the submissions in relation to loss and mitigation. I find that the complainant contributed 90% to the situation, and compensation in the amount of €3,700 should be paid to the complainant by the respondent.

CA-00003534-002

I note the evidence that the complainant was paid two weeks notice in lieu and I do not uphold his complaint under the Minimum Notice & Terms of Employment Act, 1973

Dated:   27/10/2016