Complainant

Respondent

Anonymised Parties

General Operative

Manufacturing Company

Representatives

Seán Heading

Technical, Engineering and Electrical Union

Brendan McCarthy

Stratis Consulting

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008321-001

22/11/2016

I am required to determine if the Respondent has demonstrated that there were substantial grounds justifying the Complainant’s dismissal on the objective standard of a reasonable employer.   It is a matter for the Respondent to show that there were substantial grounds justifying the dismissal. The burden of proof is on the Respondent.

The Complainant case was that he worked with the Respondent as a production operator from 2004 to his summary dismissal on the 30^th of September 2016.

He was charged with

1. Failure to isolate equipment while working on it and failure to complete a risk assessment
2. Sleeping while at work

The Complainant contested his dismissal on the following grounds:

1. The Respondent failed to prove any of the charges made against him.
2. There was a delay in putting the allegation of gross misconduct / safety grounds and sleeping on the job to him
3. There was a lack of fair procedure and a denial of natural justice during the investigation.

The Complainant first became aware of issues with his behaviour on the 24^th of August 2016 when he was suspended with full pay pending an investigation.

The Complainant maintained that when the assistant production manager came upon him on the 12^th August 2016 he was carrying out a risk assessment and checking out what equipment he needed for the job he was undertaking.

The Complainant disputed the assistant production manager’s version of events and noted that the assistant production manager had never carried out that particular job himself. The Complainant submitted that the assistant production manager was making a judgement concerning what he was doing and because of his lack of understanding and not having ever carried out the task, this judgement was incorrect.

When the assistant production manager was asked why he took so long to act on what he considered to be a breach of safety rules, the reply given was that he was unsure about company procedures.   The Complainant did not accept that.

As the assistant production manager was the initial complainant, the Complainant submitted that he could not have been objective or impartial in relation to the investigation process and should not have been a party to same.

As regards the allegation of sleeping on the job, the Complainant submitted that his line manager had made an incorrect reference to the date on which it happened and on more than one occasion the line manager was asked by the Complainants representative to be present to afford the representative the opportunity to question him on his statement and the contents of same. This would have been in line with The Code of Practice on Grievance and Disciplinary Procedures SI 146 of 2000.   The code of practice sets out that the principles of natural justice and fair procedures may require that the employee concerned is allowed to confront or question witnesses.

The Complainant had issues with his line manager stating that he had witnessed him asleep. If that was the case, he contented that the line manager would have approached him. He further didn’t accept that he would have been in a position to see the Complainant due to the location of the cab and where the line manager states he was standing. The Complainant felt that if he was asleep the line manager should have come into the cab of the machine he was working in and woken him. This never occurred.

Overall the Complainant felt that the Respondent failed to carry out an objective impartial investigation and that none of the charges levelled against him were proven. There was a dispute as to evidence and the Respondent’s version of events was taken as correct.

There was no evidence of any other disciplinary issues against the Complainant.

There was no explanation given as to the failure to facilitate the line manger being cross examined by the Complainant’s representatives other than the answer that it was company procedure not to make witnesses available.

The Respondent’s case is that the assistant production manager observed the Complainant on the 12^th of August 2016 at 10.00a.m. in the mill building, working on a piece of equipment without that equipment being properly isolated. The manager’s contention was that the Complainant was poking the machine and that an extension of his person (a metal bar) was inside the machine. There was a motor in the upper hopper which wasn’t removed and the Complainant did not have control over the isolation and by extension was inside of the machine.   Further, a risk assessment had not been completed prior to undertaking the task.

A further incident took place on the 15^th of August 2016 between the hours of 03.00 a.m. and 04.00 a.m. The allegation was the Complainant was found asleep in a loading shovel in a shed.  

The assistant production manager and the HR manager made the decision to suspend the Complainant on full pay on the 24^th of August 2016. The Complainant had continued working as normal until this date.

An investigation into the alleged incident commenced which was carried out by the assistant production manager and the HR manager. This involved interviewing the Complainant on the 31^st of August 2016 in the presence of his union representative (TEEU). The Complainant was further interviewed on the 13^th of September 2016 again in the presence of his union representative.

The assistant production manager made a witness statement himself on the 24^th of August 2016.

A statement was taken from the line manager by the investigators on the 22^nd of August 2016, 5^th of September 2016 and 13^th of September 2016.

An investigatory report issued on the 14^th of September 2016 by the assistant production manager and submitted to the senior production manager. The investigation was conducted in accordance with the Respondent’s disciplinary procedure.

The investigation report referred to the two separate charges. The first charge was “failure to properly isolate equipment while working on it and failure to complete a risk assessment”. The second charge related to “the observation of the Complainant asleep in the loading shovel in the coal shed”.

A disciplinary hearing was heard on the 26^th of September 2016. This was heard by the process manager who was a direct manager of the assistant production manager. The decision maker found the first charge of failure to isolate equipment while working on it and failure to complete a risk assessment was proven. It stated that he relied on the fact the Complainant had admitted during the investigation and at the disciplinary hearing that he was working on the machine. The decision maker was satisfied that he knew or should have known that what he was doing was contrary to safe working practice and constituted a significant risk.

As regards the second charge of sleeping while at work, the decision maker found that on the balance of probabilities the Complainant was at least resting if not actually sleeping.   Therefore he concluded that the charge was proven.

The decision maker considered the assistant production managers involvement in the investigation and whether this resulted in bias against the Complainant. The decision maker found that the assistant production manager was his direct manager and it was appropriate for him to gather the facts.   He was accompanied by the HR manager at all times during the investigation and a joint report issued.   There was nothing in the report to suggest bias. The decision maker took into account that the Complainant received appropriate training and that he worked for six shifts after the incident before the company situation was made known to him. The decision maker addressed the complaint of the Complainant that he was not given an opportunity to question his line manager and was only allowed to question him via correspondence. The Complainant was given an opportunity of raising queries he had in relation to his line manager’s evidence and he received copies of his written response and given a further opportunity to commenting further on these. The decision maker agreed with a certain number of points made by the Complainant’s representative on:

a)      approaching him directly on the night in question to check his status,

b)      the delay in providing a statement from him and officially putting the charge to him

The decision maker found that the delays were unfortunate; however he did not accept that the delays created the situation whereby the Complainant could not remember what had happened was not credible. The decision maker considered if there were any mitigating circumstances either in fact or procedurally that would justify a lesser charge than gross misconduct. The decision maker found that the charge relating to safety on its own warranted summary dismissal. The failure to properly isolate the machine and carry out a risk assessment could have resulted in serious risk to life.  

The Complainant was given an opportunity to appeal this decision to the overall plant manager who is the most senior manager in the operation. Also another manager in a different section sat on that decision making panel.

An appeal hearing was held on the 14^th of October 2016. The decision following the appeal hearing issued on the 26^th of October 2016. The Complainant as part of his appeal set out that fair procedures were not followed as the assistant production manager had already formed an opinion that he was guilty prior to the investigation.

The decision maker found that fair procedures were applied and that it was appropriate that the assistant production manager should conduct the initial investigation.

The decision maker found that the Complainant had a full opportunity to question his line mangers evidence on his accusation of sleeping, no additional questions or issues that had not been covered in correspondence were raised by the Complainant.

The Complainant during the appeal produced evidence that he had been using his phone to send messages via Facebook between 02:52 a.m. to 03:22 a.m. The decision maker found that sending a text at 03:22 a.m. did not mean that he could not have been asleep at 03:30 a.m. and furthermore he was alarmed that the Complainant considered it to be acceptable to be on his phone when he should have been working. In addition operating a vehicle while on his phone was a further breach of health and safety rules.

The decision maker found that the evidence of the assistant production manager to be more truthful and that the Complainant was changing his story between the initial investigation and appeal.   The decision maker upheld the original decision to dismiss without notice.

The principles of natural justice must be applied by the Respondent in the policies and procedures it applies to the Complainant’s employment and dismissal. This requires that fair procedures are applied, not perfect procedures. As stated by Barrett J. in Boyle –v- An Post [2015] IEHC 589 “fairness is ever required, perfection is unattainable”.

In hearing this claim, it is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as Adjudication officer is whether, following a fair and transparent investigation and disciplinary process, the respondent’s decision to dismiss was one that a reasonable employer might have made. (EAT – UD690/2012).   The issues that I need to address are:

1. The Respondents suspension of the Complainant pending the investigation and disciplinary process
2. The involvement of the assistant production manager in the investigation
3. The delay of 12 days in putting the complaints to the Complainant
4. Failure to provide witness to cross examine during the process

As regards the suspension of the Complainant, even where a right to suspend exists in the contract or staff handbook, a suspension will normally only be justified where necessary to:

(i)    Prevent the repetition of the conduct complained; or

(ii)   Prevent interference with evidence; or

(iii)  To protect the employer’s own business or reputation

In essence, any suspension pending an investigation should be precautionary in nature and not punitive and should only be undertaken following a consideration of the necessity for the suspension.

The onus on Respondent is to think very carefully before moving to suspend an employee pending an investigation. Before taking this step they should consider any alternatives to suspension, having regard to the particular circumstances of the case. If it is the case that there are no suitable alternatives to suspension then the employer must ensure that due process and fair procedures are afforded to the employee in respect of the suspension itself and the investigation and potential disciplinary process. Governor and Company of the Bank of Ireland v Mr. James Reilly, High Court, [2015] IEHC 241

The Respondent gave evidence that it did consider whether to suspend the Complainant or not and decided to suspend on the risk of a repeated safety breach. In the circumstances and on hearing that the Respondent did consider the matter rather than automatically apply a holding suspension to the Complainant, I find that the Respondent acted reasonably in accordance with its duty to the Complainant viz a viz suspending him.

As regards the assistant production manager’s role in the investigation process, it is critical that a disciplinary investigation is conducted fairly and objectively and be seen to be so. The Respondent’s disciplinary procedure provided that “the matter will be dealt with as promptly as possible, allowing for a full and thorough investigation of the facts. A member of the management team will interview the employee to ascertain further information regarding the alleged breach of Company rules, regulations or standards”.

This investigation is an internal enquiry.  Such enquiries may proceed on a less formal basis than a criminal investigation, however they need to be reviewed to assess whether fair procedures were followed.

In other circumstances, it may not be appropriate for the Assistant Production Manager who was the initiator of the first complaint against the Complainant to act in the sole role of investigator.   However in this case, he acted jointly with the HR Manager and there were no other witnesses of fact to the action of the Complainant as alleged. His role in the investigation was reviewed and considered by the decision maker at first instance. In these limited circumstances, I don’t have an issue with the Assistant Production Manager acting as joint investigator.

As regards, the issue of delay, I do not find that a delay of 12 days is unreasonable.

As regards the issue of the right of cross-examination, this was dealt with recently in the case of Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272 and in NM v Limerick and Clare Education and Training Board [2015 No. 308 JR].

In the Lyons case, Eagar J. re- stated the principle cross-examination is a vital safeguard to ensure fair procedures.

‘it is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence’

In the NM case, McDermott J held a “distinction has to be drawn between the standard of fair procedures applicable to an investigation which was information gathering and that applicable to the making of a finding that could lead to the conclusion of a complaint by its dismissal or sending it to a further stage on a finding of a prima facie case”.

I do not accept that the Respondent’s proposed cross examination by correspondence was fair the Respondent should review its policy in this regard.

I note that the Complainant’s questions were put to the witness in the absence of the Complainant and a reply obtained from him. However, the Complainant did ask to question the witness in person on a number of occasions and this opportunity was not provided.

I must now consider if this failure resulted in a flawed investigation process and in the circumstances of the case, I find that it does in so far as the second complaint against the Complainant.

My next question is whether this failure, tainted the entire disciplinary process.

In this case, the Complainant had two complaints against him and both resulted in a finding of gross misconduct. The above noted flaw in the investigation process only tainted the finding of gross misconduct on the second count which was sleeping on the job.

However, I find that the decision to terminate the Complainant’s employment on the first count was carried out in a fair and reasonable manner.

My role in these proceedings is addressing only the question of whether or not the Complainant was afforded fair procedures in relation to the investigation and termination of his employment contract.

While the process undertaken was not without fault, on the whole, the process was comprehensive and fair and the Respondent acted in accordance with its own policies.

Therefore, I find that the complaint fails.

Suspension, delay, right to cross examination.