UDD1761

The Complainant appealed against the decision to this Court on 30 March 2017.

The Company appealed against that decision to this Court on 19 April 2017.

The matter came on before the Court on 7 November and 4 December 2017.

Facts of the Case

The Company operates a warehouse from which it supplies its customer base. It employed the Complainant as a Warehouse Operative commencing May 2007. The Complainant had a good employment record until a number of incidents occurred in March 2015 that gave rise to a disciplinary sanction being issued against him. The Complainant was found to have carried out his work as a fork lift driver in an unsafe manner.

The Company issued the Complainant with a final written warning arising out of its investigation into those infringements of its health and safety code of practice. That sanction was appealed through the agreed procedures to the Workplace Relations Commission. As a result of that appeal the final written warning was reduced to a written warning.

While that sanction was under appeal the Complainant was involved in a further infringement of the health and safety procedures in place in the Company. On this occasion he stood on a pallet on a fork lift and was hoisted a considerable height above the ground to make safe product that had overbalanced on a rack that was at a similar height or somewhat more above ground level.

The Company conducted an investigation into that incident and decided following consideration of all relevant matters to dismiss the Complainant for gross misconduct. In this regard it relied on the following example of gross misconduct set out in its Handbook.

“Deliberate contravention of Health and Safety rules or failure to obey any instruction which could affect the safety of any employee or customer.”

The Company set out its decision to dismiss the Complainant in a letter dated 3 July 2015. In it the Company states

“I consider your actions to be gross misconduct and having considered all alternatives I have decided to take the severest sanction an employer can take against an employee and to summarily dismiss you with effect from 2^ndJuly 2015 in accordance with the Company’s Disciplinary Procedure.

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  •You have admitted that on 20^thJune 2015 you stood on a pallet which was lifted into the air by a Fork Lift truck, to recover stock which had dropped off a broken pallet while the pallet was on the racking

  •I am satisfied that you are fully trained in fork lift operating procedures and aware that being lifted into the air by a Fork Lift truck is not considered safe practice and in breach of the Fork Lift Licence

  •You have failed to provide any mitigating factors

  •I have taken into consideration the fact that your actions were to try and recover as much stock as possible, however the intention does not justify the failure to adhere to Health and Safety procedures.”

The Complainant appealed against that decision on a number of grounds.

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  •Firstly he submits that he did not deliberately breach health and safety rules. He submits that he instead acted to make stock that had become unstable on a rack and to remove damaged stock that was leaking and damaging other stock in the warehouse.

  •Secondly he submits that he was acting in the manner in which he had been instructed to deal with such incidents over many years.

  •Thirdly he submits that other members of staff involved in the incident were not as severely disciplined. The fork lift driver who lifted him onto the rack was dismissed at first instance which was reduced on appeal to a final written warning and another employee who climbed on the rack to recover the same stock received a written warning.

  •Fourthly he submits that he had appealed against the final written warning he had received in April and that it was subsequently held that that sanction had been excessive. He submits that the final written warning he had been issued with was taken into account in the decision to dismiss him. He submits that as that was an excessive sanction any further sanction based on it cannot stand.

  •Fifthly he submits that there was no procedure in place for dealing with such incidents in the warehouse and that staff were largely left to their own devices to deal with them as they saw fit. He submitted that his actions on this occasion were no different to the manner in which such situations had been dealt with previously.

  •Sixthly he submits that while health and safety procedures were tightening up in the warehouse no training nor operating procedures had been put in place to deal with incidents such as that which had arisen in this case.

  •Finally he submits that his behaviour cannot amount to a deliberate contravention of health and safety policy and cannot be considered gross misconduct or warrant dismissal when viewed in context.

It further submits that the Complainant was aware that he should have secured the area and reported the matter to his supervisor and taken instructions on how to deal with the spillage should he have had any doubts.

It further submits that the Complainant had available to him a “cherry picker” to safely recover the stock from the rack but that he chose not to use it.

It further submits that the Company had prioritised health and safety improvements and had commenced a programme of education and awareness to alert everyone to the new strict adherence to safe practice in the warehouse.

It submits that the Complainant was well aware of these new strict adherence requirements as he had been recently through a health and safety infringement hearing that resulted in sanctions against him.

It submits that that it did not rely on the final written warning issued to the Complainant to decide on the sanction of dismissal in this case. It submits that it rather relied on the Complainant’s engagement through procedures with the Company’s strict adherence to health and safety procedures in the conduct of its business. It submits it was his wilful failure to abide by those procedures that resulted in his dismissal.

Findings of the Court

The Court heard from a number of witnesses who gave evidence on behalf of both the Company and the Complainant.

Based on the evidence before it the Court finds that the Complainant did not deliberately contravene the Company’s health and safety policy.

Instead the Court finds that the Company was under new management and was introducing a strict adherence to its health and safety policies. This process had begun but was at a very early stage and had not yet gained widespread understanding or adoption in the warehouse.

Old, accepted and sanctioned but unsafe work practices continued to operate in the warehouse. And while the Company intended to change these it had not yet published its standard operating procedures to the staff to enable them to comply with the new rules.

When the incident at issue arose the Complainant responded to it in the same manner in which it had been dealt with on numerous occasions in previous years. This fact was attested to in evidence by several witnesses for the Complainant. No one on the Company side was in a position to contradict that evidence.

Accordingly the Court finds that the Complainant’s response was in line with established practice in the warehouse. As such it cannot be said to amount to a deliberate breach of health and safety rules as claimed by the Company.

On the balance of probabilities therefore the Court finds that the Company’s reaction to the incident was premature and excessive and would not have been similarly reacted to by a good employer in similar circumstances. The Company was in transition to a more rigorous health and safety conscious operation and the Complainant was entitled to more support through that transition.

Accordingly the Court finds that the decision to dismiss the Complainant in these circumstances was unfair and determines accordingly.

Remedy

The Court finds that the Complainant was a valued employee for close on 10 years. The incident that gave rise to his dismissal should not prevent him from returning to work and undergoing training in the new health and safety procedures that are now more firmly established. Accordingly the Court finds that re-engagement is the most appropriate remedy in this case.

On that basis the Court orders the Company to re-engage the Complainant with effect from 1 January 2018 into his old position and on the same terms and conditions of employment within the warehouse. It further orders that the Complainant’s service should not be interrupted by the period between his dismissal on 3 July 2015 and 1 January 2018 (i.e. the Complainant’s service for that period is continuous for all statutory and allied purposes). Instead that period of time should be treated as a period of suspension without pay from work (i.e. the Complainant’s service for that period is non-reckonable for all statutory and allied purposes).

The Adjudication Officer's Decision is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
20 December, 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.