ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001620

Complaint for Resolution:

Date of Adjudication Hearing: 8th June 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 28^th January 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts. The complaint was scheduled for adjudication on the 8^th June 2016.

The complainant attended the adjudication and was represented by Oliver McDonagh, SIPTU. He was accompanied by four witnesses who were fellow employees and include two family members. The respondent was represented by Barry Reynolds, DAC Beachcroft Solicitors. Five witnesses attended for the respondent.

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

Respondent’s Submission and Presentation:

The respondent dismissed the complainant on the grounds of gross misconduct on the 19^th November 2015. The dismissal followed an incident on the 28^th October where two large bales were tipped off a forklift and crashed onto two cars in a neighbouring site. While the cars were badly damaged, nobody was in the vicinity and no one was injured. The complainant was the operations manager on duty and dismissed because of health and safety breaches.

The first witness gave evidence for the respondent. He outlined that he was assigned to investigate the incident of the 28^th October 2015 and that he works for the respondent as “General Manager – Projects” at a facility operated by the respondent in the United Kingdom. He is referred to in this report as the ‘Investigator General Manager’. He outlined that he was asked by the Regional General Manager to investigate the incident. In the course of his investigation, he interviewed the complainant and a colleague and concluded that they both had a case to answer. He did not interview the driver.

The Investigator General Manager said that he had been selected for the role as he was not part of the site and because he was a senior member of the respondent management team. The incident had occurred when an operator had used a forklift to move bales but they had fallen against the perimeter fence, toppling onto the adjacent site. Each bale would have weighed approximately 350 to 450 kilos. It was apparent that the bales were not tied securely. The normal practice was that a clamp truck would be used to carry one bale at a time and it was not good practice to carry two bales together.

The Investigator General Manager outlined that the disciplinary issue arose in this case because the forklift operator had not been licensed appropriately. He said that operators had to be trained and certified on each piece of equipment and given a ticket to confirm that this had been obtained. The incident involved a counter-balance forklift and this required the operator to be licenced. The driver on the day of the incident had been assessed on this piece of equipment and a recommendation issued that he be trained further. The Investigator General Manager said that he established from the interview that the complainant knew the driver was not licenced but that he was competent to drive the machine. The complainant had given the instruction to the driver to use the machine in question. During the interview, the complainant had said that he had been reminded of outstanding training requirements arising from a previous incident, i.e. he had prior knowledge that the driver was not trained. Later, the complainant had said that the requests for additional training had got lost in time. The Investigator General Manager did not know whether the relevant licence required drivers to only transport one bale at a time.

In cross-examination, the Investigator General Manager accepted that carrying two bales was bad practice and that at the facility he managed, the practice was to carry one bale at a time. He said that it was also normal practice to have safety assessments in preparation for any operating procedure. He outlined that over the last 12 to 18 months, there had been a great deal of work done to bring the health and safety standards on the Irish site up to the standards across the respondent company. It was put to the Investigator General Manager that it had been a clamp truck, and not a counter-balance forklift, that the driver had been seen as uncomfortable on. The Investigator General Manager acknowledged that the driver had been assessed as competent and due for training and that this intervention had happened because of the complainant. He stated that licences were issued internally by the respondent.

In re-examination, the Investigator General Manager said that his role had been to assess the incident and he was engaged on a fact-finding exercise. He said that the driver had been observed not looking comfortable while driving a clamp truck. He said that he was aware that the complainant had lodged a grievance with the respondent. He said that he had only been asked to interview the complainant and one colleague; he had not interviewed the driver.

The Investigator General Manager gave additional evidence at the end of the respondent’s case. He said that it was his understanding that assessments were used to assess ability to do training. An employee should only use machinery for the purposes of assessment and not more widely. During the investigation, he became concerned at the complainant’s disclosures regarding the culture in the Irish facility and he perceived that training was not being done. He followed up with the Irish general manager to verify that the training programme was in place and being carried out. He said that he had been involved in another dismissal on the Irish site arising from the use of machinery.

The Head of Scheduling gave evidence. He outlined that he carried out this role in the UK and Ireland and that he was responsible for global KPIs and benchmarking, as well as his scheduling role. He was approached by the Regional General Manager to carry out the disciplinary process. On the 11^th November 2015, he wrote to the complainant to set out the disciplinary process and invited the complainant to a disciplinary meeting to be held on the 16^th November. The letter refers to two allegations of potential gross misconduct. The first is a serious breach of health and safety procedures, namely neglect or carelessness which results in the loss, damage or destruction of the property of the Company or any other person. The second is the deliberate contravention of safety rules or failure to obey any instruction which could affect the safety of an employee or customer. He outlined that there was a significant difference between an operator who was not licenced and one whose licence had lapsed; the latter was qualified to operate the machinery. In this case, the driver had asked the complainant to be trained; the complainant had said that he had sought this training. On the day of the incident, the driver and another named colleague, who was licenced, should have swapped roles. He did not accept the complainant’s explanation that he had asked this colleague to drive the machinery instead of the driver who operated the machine on the day in question. He read the interview notes with the driver and believed that they were correct. It also arose that the driver had driven the forklift on many occasions and the complainant was not qualified to assess drivers.

In deciding to dismiss the complainant, the Head of Scheduling said that he reached this decision because of the systemic abuse to allow an unqualified employee to carry out the task of driving a counterbalance forklift. Furthermore, the complainant had had the opportunity to raise outstanding training needs with the local General Manager, but had not done so. He referred to the training review that had followed the February 2015 incident that the complainant was aware of. He commented that the driver in this incident had been licensed. The Head of Scheduling outlined that he issued the complainant with the letter of dismissal and this cites that the dismissal is warranted because the October incident arose out of a constantly occurring practice that could have been resolved. The incident had been very serious and was not a once-off. The fact that this was a repeat offence led the sanction to be a dismissal.

In cross-examination, it was put to the witness that the letter of dismissal of the 19^th November 2015 refers only to one incident; he replied that the complainant had admitted to assigning an unlicenced driver to a machine. Asked why only the complainant was dismissed, the witness replied that this was the only employee he was disciplining. He said that he was aware that the training manager had deemed the driver to be competent. He outlined that while the Code of Practice does not refer to a driver being licenced, it does refer to the driver being properly trained. It was put to the witness that the complainant was entitled to rely on the training manager’s assessment of competence; he replied that one could not compare such an assessment with five days of training provided on a forklift. The Head of Scheduling said that he did not accept that the complainant had acted within the Code of Practice and he was not aware if the Code of Practice had been brought to the attention of employees. The witness was asked to comment on the reference in the minutes of the meeting of the 3^rd November with the driver where it states that the trained, licensed colleague as being asked to load the forklift; he acknowledged that this was what was written. He outlined that he was looking at the whole practice of using unlicensed drivers.

In re-examination, the Head of Scheduling outlined that the complainant had asked the licenced driver to ask the unlicenced driver to operate the machine on the day of the incident. He had dealt with the issues arising in the disciplinary letter sent to the complainant and it had been the repetition that was key to this case as well as the opportunity for the complainant to deal with issues. The complainant had said that the local General Manager was not listening to his concerns, but that it had been open for the complainant to go elsewhere in the organisation for help. He acknowledged that people could make once-off errors, but the issue here was systemic. It had been open to the complainant to change all this. While the complainant had raised the training issue with the driver concerned, it had been the complainant who assigned duties on the day in question.

The Appellate General Manager gave evidence. He outlined that he had been asked to hear the appeal lodged by the complainant against the decision to dismiss him. He had been supplied with the letter of appeal as well as all the other documentation. He said that he sought to establish why an unlicenced driver had been scheduled to drive a forklift. He acknowledged that training had been requested, but the specific training had not been scheduled. The training manager had not approved the driver for driving the forklift; the driver had only been deemed competent to continue training. He said that he did not interview the driver as part of this process. He outlined that assessment and training were not the same thing and nor were being experienced and being licenced. He said that the complainant had made an admission in requesting training for the driver as this acknowledged that the driver was untrained.

The Appellate General Manager outlined that he carried out a further investigation before deciding the appeal. He interviewed seven people and spoke to some of these people more than once. The interview notes were circulated for comment and the complainant did not reply with any comments. He requested the names of additional potential witnesses from the complainant, but none were forthcoming. He outlined that this appeal took place over the busiest time of year and that the facility only closed for two hours on Christmas Day and they operated a six-day week. In relation to training, the Appellate General Manager said that the HR advisor kept the training matrix up-to-date but it was not her role to ensure that training was carried out. There was an allegation that the training matrix had been changed, but this could not have impacted the situation here as the driver never had a licence to drive the forklift. Following the investigation, he established that the five names originally provided by the complainant included those whose licences had lapsed. There was also no evidence to back up the complainant’s allegations.

In cross-examination, the Appellate General Manager accepted that the complainant had requested training for the driver. It was his duty to ensure that all staff were trained for the duties they perform. He outlined that the training manager had only deemed the driver competent to pursue further training. He agreed that the meeting on the 2^nd December 2015 had been adjourned to allow him speak with other witness and that the process continued over the Christmas because of the need to finalise the appeal. It was put to the witness that the letter confirming the dismissal was issued on the 5^th January 2016 despite a request for an extension; he replied that the complainant had not provided additional names and that there had already been a six-week appeal process.

The Appellate General Manager outlined that he confirmed the complainant’s dismissal because the complainant had failed to have somebody trained and this had posed a danger to property and to people. There was the threat to the respondent’s reputation. There were no mitigating circumstances. There had been previous incidents and the training matrix was up-to-date. It was sufficient that the driver was the only person repeatedly assigned tasks for which they were not trained to make this a systemic issue.

The HR advisor gave evidence. She outlined that she attended disciplinary and appeal meetings on management’s behalf and she also carried out administrative functions relating to the process. She was also interviewed as part of the appeal process. She outlined that it was not her role to ensure that training was carried out and it was a manager’s role to ensure that tasks were allocated to appropriately trained staff. Training had been given to all staff, including the complainant in February and May 2015. In cross-examination, the HR advisor said that the training provided in May 2015 covered the dangers of untrained personnel operating machinery and included the checks to be done on employees’ qualifications. She commenced working for the respondent in January 2015 and an audit had then taken place looking at all health and safety records. She had gone through training certificates and ensured that the training matrix was up-to-date. This had been achieved by July 2015. She did not accept that the May 2015 presentation showed that the training was insufficient; this had been supplementary training. The HR advisor referred to the transcript of the 16^th November interview with the complainant where the question as to whether the complainant had instructed the licenced driver or an unlicenced operative to drive the forklift on the day in question. She said that there was confusion as to whether the complainant had spoken to the unlicenced driver directly and it was not 100% clear who had instructed who. She accepted that she had spoken in general terms to the disciplinary manager, but she had not been involved in the decision to dismiss the complainant. She stated that the complainant had been supplied with the driver’s statement in advance of the disciplinary meeting. In reply to the question that training had been greatly augmented since the October 2015 incident, she outlined that training continued as normal since then. There had been a similar amount of training given before and after the incident.

The training manager gave evidence. He said that he was the warehouse supervisor and responsible for the daily operation of the warehouse as well as the provision of training, health and safety induction and first aid. He said that the role of assessment was to establish the timescale to train an employee up. He stated that all machinery was different. In respect of the counterbalance forklift, he outlined that there were five days of training. This included videos for the operator to watch as well as a Statutory Instrument to learn about. Stabilisation was important and each trainee would be given a questionnaire at the end of training. They would then be assessed and this would take an hour. The assessment took place on the fifth day of training. In respect of the driver, the training manager said that this employee had stated that he had years of experience but it was not clear whether he was licenced. The complainant had asked the training manager to assess the driver, which he did. This assessment took place sometime before the October incident.

The training manager outlined that he was interviewed five times in this process, once during the investigation and four times during the appeal. He said that the complainant had requested training for the driver, so he knew that he was not trained. It was never permitted for unlicenced workers to drive machinery and he had never seen the driver use a forklift at any time. The training manager said that he was usually based to the front of the plant and rarely in the back, where the driver was based. The training manager outlined that some days before the adjudication, he was approached in a local shopping centre by the complainant and his spouse. He was asked whether he was able to sleep at night. The complainant sat down next to him and spoke in an aggressive tone. The training manager said that this was an attempt to intimidate him. The complainant had tried to put the blame for the incident on him. He said that he had not been told by the respondent what evidence to give.

In cross-examination, the training manager said that he had assessed the driver as competent to use the machine and thought that he was licenced. He accepted that the assessment had taken place on a forklift, but said that this was only for assessment purposes. The contents of an email of the 1^st June 2015 were put to the training manager, i.e. machine operators can continue to use machinery during assessment; he replied that this related to PPT and took place during training. In relation to the shopping centre incident, he denied speaking to the complainant first. In re-examination, the training manager said that the email of the 1^st June refers to a different process to the five-day training course.

The complainant sought to introduce an email dated the 28^th July 2015 during his evidence. The respondent objected to this as it was not probative and was not part of the decision-making process to dismiss the complainant. This email is from the Irish General Manager and addresses requests made by the complainant. The Head of Scheduling said that he was not aware of the email in making the decision to dismiss. The Appellate General Manager said that he was not aware of the complainant’s grievance.

In closing comments, the respondent outlined that the onus in law was on the employer to show that there was both substantive and procedural fairness in the dismissal. This matter related to a very serious incident where an untrained person had used machinery. This was an employee to whom the complainant deliberately and regularly assigned forklift work to. He should have also known that the driver was not licenced. This was not a matter about whether training was made available. These findings were established as part of the disciplinary process and showed that the process was substantively fair. It was submitted that the process was robust, especially the appeal period where additional evidence was sought from the complainant and not provided. Christmas was a busy time for the respondent and a time of work and high activity. Staff were available during this period. The appeal period had lasted five to six weeks and the decision makers had taken cognisance of the interview notes and evidence of the parties. The sanction of dismissal was fair and later upheld on appeal. In relation to remedy, reinstatement was not appropriate due to the breach of trust and confidence on the part of the complainant. There was no basis to award compensation as the complainant had applied for one job and he had been asked to show mitigation in pre-hearing correspondence. The other job applications were anecdotal. No award can be made for the period the complainant was unwell.

Complainant’s Submission and Presentation:

The complainant outlined that he began working for the respondent in 2010 as a contractor. He later became Facilities Operations Manager and reported to the Irish general manager. The managers of other departments also reported to the general manager. He managed a team of seven, composed of one team leader and six general operatives. He said that his job description was never tied down. He was responsible for the general maintenance of the site and everything outside of the warehouse. This included recycling materials and the preparation for audits. He had also been responsible for the outdoor advertising for a large fast food chain. He said that he looked for general operatives who were hardworking and responsible. He did not look for particular skills as job-specific training was provided. General operatives were expected to work in all areas.

The complainant outlined that he had received promises from his line manager’s predecessor about career advancement. An undertaking to support a third level course had been put on hold because of the project with the fast food chain. He then encountered a difficult working relationship with a manager, who kept the complainant out of the loop and made him work to tight deadlines. The complainant had lodged a grievance against this manager. When the current Irish general manager was appointed, the complainant was asked to stop the grievance. He said that he had been sidelined from the management team.

In respect of the incident of the 28^th October 2015, the complainant outlined that there was a lot of pressure on this day as key people were absent because of carried-over annual leave. He was not aware that the driver did not possess a licence and the complainant had sought to have training provided to him. The respondent had been slow at delivering the training required. The complainant had sought for all training to be completed for audit purposes. The training manager had been happy for the driver to use a forklift and he would have regularly seen this occur when the driver emptied bins. The training manager had also assessed this driver. The complainant said that his was an office based role and that the day to day running was left to a named colleague. The complainant said that the training matrix was often falsified before audits, giving the example of dates being added in. It had been his initiative to have a training manager appointed and he was involved in employing the training manager.

In the immediate aftermath of the incident of the 28^th October 2015, the complainant said that he was worked hard to repair the railings. He wrote a note about the incident. He was suspended the next day but did not think that his job was at stake. In the investigation, he said that it was he who informed the investigator that the driver had admitted to not having a licence. Without the complainant’s disclosure, the investigator might not have ascertained this. Generally, most staff did not have licences for forklifts, while they had other licences. In respect of the meeting of the 2^nd December 2015, the complainant said that the outcome felt pre-determined; the issue was being used to push him out of the door. The operation would have ceased if licence requirements were enforced. He stated that he was not pointing a finger in raising training needs but seeking to address issues with the management team. He submitted that it was wrong to drive through the appeal over Christmas and that the five witnesses he had put forward were forcefully approached by representatives of the respondent. He had a non-existing relationship with the Irish general manager, who did not engage with him. This was the manager who had not followed through on the previously-agreed third level course. He pointed to a named colleague who had a practice of loading two bales on a forklift.

In cross-examination, the complainant said that he had received internal correspondence regarding this complaint. This was sent to him unsolicited and anonymously. One email refers to the complainant as the tail wagging the dog. The complainant outlined that he had taken steps to enhance safety, for example introducing Safe Pass for all staff. He agreed that it was his role to request training and that he had repeatedly asked for training for the driver and did so at every opportunity. He agreed that he set the rota for the team and as a general operative, the driver would often use the forklift. The driver had done so for many months in plain sight of the respondent. In respect of the 28^th October 2015, the complainant said that he had instructed a named and licenced operator to use the forklift, not the driver. It was put to the complainant that there was a contradiction in asking for training for the driver and not knowing he was unlicenced; he replied that the licence for the driver was not his top priority and in any event they operated machinery without licences and had been told to continue. The complainant was asked about the names put forward in the investigation meeting of the 5^th November; he replied that he had trained all agency staff in 2014 but that they changed continuously. The complainant replied that he accepted his share of responsibility and that he had taken steps to address the damage. He said that fobs were not required to use outside machinery. He said that he had never seen the five-day process outlined by the training manager and he had not been trained in this way. When asked about submitting additional names, the complainant said that he was trying to understand the process and did not want to submit names over Christmas as the employees concerned would be contacted during this time. He also wanted to liaise with the staff concerned before putting their names forward. Commenting on mitigation, the complainant outlined that he had been in the process of fighting for his job and required counselling after these events. He had applied for a couple of jobs and also sought work through a car hire service. He said that what had happened was totally unfair, commenting on the arrival of the Gardaí to his home at the instigation of the respondent.

In re-examination, the complainant said that he had received letters on the 29^th and 31^st December 2015 regarding company goods he retained. A named member of the respondent management team had told him to keep the goods until the end of the process. In correspondence, the complainant also raises the issue of a number of his possessions being retained by the respondent.

The witnesses gave evidence. One outlined that when his licence lapsed, he was just asked to complete a process. He has been driving forklifts for years and all staff use forklifts every day. Another witness, the complainant’s father, outlined that he worked on forklifts and balance trucks with a lapsed licence. He had been out on sick leave for two years. In cross-examination, he said that he had been assigned duties by the complainant, his son. Another witness outlined that he has worked for the respondent for 19 years and now worked in the stock room. He had used a counterbalance truck for many years, but had only been licenced to do so in December 2015 or January 2016. This followed his interview with the respondent of the 9^th December 2015.

In closing comments, the complainant outlined that he did not have the opportunity to submit additional names as the process was unilaterally ended by the respondent in early 2016. The appeal process commenced in mid-December and overlapped with the Christmas period. It was a flawed process. He also commented on the correspondence issued in relation to goods; they had an intimidatory effect. The complainant had been a victim of the lack of policy and procedures on the part of the respondent. These were issues that the complainant had sought to address. There were only two exercises in health and safety training in 2015, but it also fell on the respondent to show how training was delivered to staff. The complainant relied on Heffernan v Dunnes Stores (UD 1355/09) where the onus was on the employer to actively inform staff of their health and safety obligations. It was unclear that instruction the complainant had not complied with. This was not a matter of disciplinary sanction.

Findings and reasoning:

The first aspect of this case is that it is difficult to underestimate the seriousness of the incident of the 28^th October 2015. Two bales, weighing 350 to 450 kilos each, fell off a forklift truck, crashing into the boundary fence of the respondent site and crushing two cars on the adjacent premises. Thankfully, nobody was in the vicinity of the crash site as they would have been killed or injured. It appears from the evidence that the cause of the incident was the carriage together of two bales on a counterbalance forklift that became unstable and fell off. The second aspect of note in this case is the amount of written evidence submitted by the parties as well as the oral evidence given by ten witnesses, including the complainant, over a full day. A third aspect is the bitterness associated with the case. Both the complainant and the respondent made allegations of witness intimidation occurring in advance of this adjudication.

Before I outline findings in relation to this claim, the relevant legal test is that it is not the adjudication officer’s role to substitute its view for that of the employer. In Poulter v B & Q (Ireland) Ltd UD1317/2012, the Employment Appeals Tribunal explained its role in conduct dismissals in the following terms:

“Thus, the Tribunal neither seeks to establish nor does it establish that the employee is guilty or innocent of the alleged wrongdoing. And further, the Tribunal must not substitute its decision for that of the employer but must ask itself if a reasonable employer in the similar circumstances to those facing the respondent would have dismissed the employee. The reasonable employer test is satisfied if the employer had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and the sanction of dismissal must not be disproportionate (Noritake (Irl.) Ltd v Kenna (UD 88/1983) and Martin v Audio Video Services Centre Ltd (UD617/1991).”

Applying the legal test to the facts of this case, I find that the respondent has not discharged the legal onus to show that the dismissal was not unfair. I reach this conclusion for three reasons. The first reason relates to the cause of the incident, the second reason relates to the role of the Irish general manager and the third reason relates to the assessment of appropriate sanction.

Taking these reasons in turn, what is most striking about this case is that any driver on the respondent Irish site, whether the holder of a licence or of a lapsed licence or even no licence at all, could have carried two bales on a forklift on the day in question. The most impressive evidence given in the course of the adjudication was that of the Investigator General Manager. He gave cogent evidence of safety issues arising on the Irish site and that on the site he manages, two bales would not be carried at once in these same circumstances. The Appellate General Manager said that it was unusual to carry two bales at once. The cause of the incident, as adduced by the evidence, was the carrying of two bales. This was not a practice contraindicated by any of the licencing or training given on the Irish site and it follows that the complainant’s dismissal cannot be grounded on the assignment by the complainant of an unlicensed driver to drive the forklift on the day in question. Given that licensed or unlicensed drivers had the practice of carrying two bales, the ensuing disciplinary action applied itself to the wrong issue and an issue not part of the incident’s causation. Even had the driver been licenced, the incident could have still occurred.

The second reason to find that the dismissal was unfair relates to the role played by the Irish general manager. I appreciate that three managers of the respondent give detailed evidence of their participation in the disciplinary process. What was missing from the evidence, however, was how much of the health and safety shortcomings could be laid at the complainant’s door and how much were part of general and systemic weaknesses arising in the Irish site. The complainant gave evidence that he had raised health and safety issues with the Irish general manager, but the issues had not been acted upon. The Disciplinary general manager outlined that the complainant should have raised the complaints elsewhere in the company. It is impossible to accept such a proposition. The complainant’s evidence was that his complaints to his line manager were not acted upon. The complainant was later accused of being responsible for systemic failings, yet this evidence of a wider failure to tackle health and safety issues was overlooked. It is not acceptable that an employee should have gone around the line management hierarchy in a company or reported the matter to an outside body in order to mount a defence to a disciplinary action taken against them. Moreover, if there was a systemic health and safety failure on the Irish site, the question never considered by the respondent was what part in the systemic failure did the Irish general manager play. From these findings and inferences, I conclude that the disciplinary action singled out the complainant and overlooked the contribution played by others.

The third reason relates to sanction. I accept the evidence of the Investigator General Manager that the complainant had a case to answer in relation to the incident. The complainant was the operations manager responsible for the allocation of tasks and the performance of duties in the yard area of the respondent facility. The incident of the 28^th October 2015 was not an accident. There was no mechanical failure. It appears to have been caused by substandard work practices, and as manager, the complainant is partly responsible for this. If an employer were to treat all managers who contributed to such an incident in the same way, it could be able to stand over the finding of gross misconduct and the sanction of dismissal. Instead, the complainant was singled out for disciplinary action as well as in the finding of gross misconduct and the sanction of dismissal. It follows that the sanction was disproportionate when compared to the treatment of others.

I have found that the complainant’s dismissal was unfair. The next question to consider is redress.  Given the bitterness in which this case was fought, I do not believe that reinstatement or reengagement are viable. I acknowledge that family members of the complainant continue to work for the respondent. Section 7(1)(c) provides for redress to financial loss attributable to the dismissal. Section 7(2) provides that regard shall be had to the extent that the financial loss is attributable to an act, omission or conduct of either the employer or the employee; the extent of the employee’s efforts to mitigate the loss and the extent to which the employee’s conduct contributed to the dismissal. The complainant was dismissed on the 19^th November 2015 and the dismissal was confirmed on appeal on the 5^th January 2016. The complainant gave evidence of efforts to find alternative employment, but also referred to ill-health which he attributed to the manner his employment ended. There is also the question of the complainant’s contribution to his dismissal. The complainant’s weekly rate of pay was €900 gross. Taking these factors, I award the complainant €15,000 and this is deducted by 20% because of the contribution the complainant made to the incident of the 28^th October 2015, which in turn led to his dismissal. This contribution is detailed in the above paragraph where the complainant was the operations manager on duty of the time of the incident. Having made this deduction, the respondent shall pay to the complainant the amount of €12,000.

Decision:

CA-00002238-001

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

Pursuant to the findings outlined in this report, I find that the complaint made under the Unfair Dismissals Act is well-founded and I award the complainant €12,000 as redress for the unfair dismissal.

Dated:   8^th September 2016