UD1261/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1261/2014

CLAIM(S) OF:                                                                                             

Noel O'Brien

– claimant                                                 

against

Nurendale T/A Panda Waste

- respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. Mcgrath B.L.

Members:     Mr. A. O'Mara

                     Mr P. Trehy

heard this claim at Dublin on 13th April 2016 and 6th July 2016

Representation:

_______________

Claimant(s) : In person        

Respondent(s) : Mr. Darach Macnamara B.L.

             Mr Michael Shanley, Nurendale T/A Panda, Solicitor, Ballymount Cross, Upper Ballymount Road, Ballymount, Dublin 24

The determination of the Tribunal was as follows:-

The Tribunal has carefully considered the evidence adduced in the course of hearing. The claimant was dismissed from his employment with the respondent company, for gross misconduct on 29^th of July 2014. The decision was affirmed on appeal within the workplace.

The claimant challenged the fairness of the decision to dismiss by way of a workplace relations complaint form which issued a month later in August of 2014.

The claimant is an experienced driver heavy plant machinery for over 30 years and in particular was familiar with how to operate a loading shovel (Volvo L220) which was the machine type he had been driving since commencing his employment with the respondent in 2012.

The claimants training in operating a loading shovel was certified and up to date and the respondent was entitled to consider the claimant as being aware of all Health and Safety precautions required for his safe operation of this machine.

The claimant described a highly pressurised workplace where he was very often the only person in his area doing the required sorting work using the loading shovel. The claimant’s immediate supervisor was a Mr. AF who was, according to the claimant, only interested in getting the work done. The claimant said that his supervisor would not like to see the claimant getting diesel or having his tyres pumped during the course of his shift as the expectation was that the claimant should be working at all times.

AF gave evidence to the effect that, on the 14^th of July 2014, in the course of the working day he was passing the construction and demolition shed where the claimant was working when he observed what appeared to be an incorrect separation of materials. As he is responsible for the correct separation of commercial and industrial materials from solid recoverable fuel materials he decided to have a closer look.

There is a conflict of evidence as to the circumstances of AF’s entrance into the shed in which the claimant was operating his loading shovel.AF says he flagged his intention to enter into the shed with a nod or a wave, the claimant says he was given no reason to expect that his fellow employee was about to traverse the floor of a shed in which he was operating his machine.

On balance, the Tribunal finds that the claimant was not made aware of AF’s intended course of action. Whatever gesture was or was not made by AF, it was nowhere near adequate warning of his intention to walk into an extremely hazardous space wherein a loading shovel was being systematically moved backwards and forwards in accordance with what the claimant was required to do in the course of his employment.

There followed a most terrible and frightening incident for AF who, as good luck would have it, survived being driven over by the said loading shovel.

The Tribunal accepts that whilst taking photographs of the contents of the shed, AF had his back to the claimant’s vehicle and was apparently unaware of the reversing signal the machine was making. AF described being hit from behind and thrown to the ground and being unable to move himself as the machine was driven over his leg. The only reason AF survived this incident was because the material on which he landed was soft and he was pressed down into it by the loading shovel. The machine moved forward releasing him.

Despite being shocked by this incident AF managed to get to his feet and chase after the claimant who it is clear had been oblivious to what had just happened.

It is accepted by everyone that there is what might be described as a “blind spot” for any driver seeking to reverse a machine as big as a loading shovel. For this very reason, all such trucks are now fitted with a reverse view camera which allows a driver to safely see that his intended path is clear by observing a screen mounted in the cab. The loading shovel being operated by the claimant on the day of this incident had just such a reversing camera and screen.

The claimant gave evidence that, on the morning of the 14^th July, he had noticed that the connection between the screen and the camera had become disconnected. There was no reason as to how or why the wiring had become disjointed and the claimant made no enquiry. In evidence the claimant stated that he did not re-connect the wiring as he was concerned that any interference on his part may give rise to an allegation of having caused damage for which he would have to pay. The clamant gave further evidence that he had made a complaint about this camera before but on the day in question did not make a complaint or make enquiry as to why it had been left in this disconnected state.

There can be no doubt that having regard to all of the claimant’s training and experience, and indeed having any reasonable application of common sense, there should have been a reluctance on the part of the claimant to use the loading shovel . If, as was the case here, he proceeded to use the machine he knew or ought to have known that reversing the shovel was highly dangerous and operating without knowing what was in his “blind spot” was inexcusable.

Even taking into account the pressurised nature of the workplace and the sense that the claimant had little enough support in the workplace, the Tribunal has to find the claimant’s actions to have been misguided and amounted to misconduct such that the employer could not trust the claimant was not reckless in his operation of the loading shovel and in his understanding of the potential outcome of such a reckless act.

The Tribunal, by a majority decision, finds that the respondent was entitled to dismiss the claimant for gross misconduct. The claim under the Unfair Dismissals Acts, 1977 to 2007 therefore fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)