FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : MC STONE SYSTEMS LIMITED T/A STONE SYSTEMS (REPRESENTED BY MR PAUL HUTCHINSON B.L., INSTRUCTED BY SEAN ORMONDE AND COMPANY, SOLICITORS) - AND - WIESLAW TYKA (REPRESENTED BY E.M. O' HANRAHAN, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Hall |
1. An appeal of an Adjudication Officer's Decision no: ADJ-00003681.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 31 May 2017 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 13 December 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Wieslaw Tyka against the Decision of an Adjudication Officer under the Unfair Dismissals Acts 1977 – 2015 (the Acts) in a claim of unfair dismissal taken against his former employerMc Stone Systems Limited t/a Stone Systems. The Adjudication Officer held that the Complainant’s claim was not well-founded. Mr Tyka appealed against that Decision.
The claim under the Acts was referred to the Workplace Relations Commission on 21st June 2016.
For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Wieslaw Tykawill be referred to as “the Complainant” andMc Stone Systems Limited t/a Stone Systemswill be referred to as “the Respondent”.
Background
The Complainantcommenced employment with the Respondent as a stone fixer/ stonemason on 22nd June 2005 and he was dismissed from his employment on 23rd February 2016. His rate of pay at the date of his dismissal was €15.66 per hour and he worked a standard 39-hour working week with his total weekly pay inclusive of overtime of four hours per week at time-and-a-half amounting to €703.00.
The Respondent is a natural stone contractor. The Complainant was employed as a skilled labourer whose principal duties included cutting stone, fitting stone and fitting waterproof membrane.
Summary of the Respondent’s Position
Mr Paul Hutchinson, B.L., instructed by Séan Ormonde & Co., Solicitors, on behalf of the Respondent, denied that the Complainant was unfairly dismissed. He said that the Complainant was dismissed due to his admitted breach of safety rules while he was working on a building site in Manchester in January 2016. Mr Hutchinson maintained that the breach was so serious that it amounted to a repudiation of the Complainant’s contract of employment leading to summary dismissal for gross misconduct. He said it constituted serious negligence on the part of the Complainant in circumstances where the Respondent's business involves,inter alia, arranging for contractors to work on site for clients commonly at construction sites where the Respondent's employees may encounter third party workers or members of the public. In such circumstances, the Respondent regards health and safety as being of paramount importance.
Mr Hutchinson said that the during the course of his employment with the Respondent, the Complainant underwent extensive training in health and safety matters (details were furnished to the Court).
He said that prior to the events leading up to the Complainant's dismissal, the Complainant has been the subject of disciplinary warnings, as follows :-
- •22nd September 2014, verbal warning for not attending programmed works without prior notification;
•26th September 2014, written warning for repeatedly showing up late for work / absences from work; and
•20th May 2015, verbal warning for a safety breach when using a nail gun and not wearing safety goggles.
In February 2015 the Respondent secured a contract to carry out stone
works on a construction site in Manchester. Mr Hutchinson said that prior to commencing the project, all employees, including the Complainant, were supplied with a Method Safety & Risk Assessment Statement Rev 01 - 20.01.2016 in relation to same. It covered,inter alia,the following key matters:-
- •supply, erection and inspection of the scaffolding systems is the responsibility of the main contractor;
•specific staff training on "working at height" procedures;
•prior to commencing works all personnel to attend the Manchester site safety induction;
•following a briefing from the Respondent's supervisors all personnel to sign the Manchester site specific RAMS (Risk Assessment & Methods Statements);
•all scaffold is to be erected, inspected, modified and dismantled by the main contractor;
•working at height access will be via scaffold supplied by the contractor;
•all access & egress scaffolds platform will be provided by the main contractor;
•at no time will any person climb out over the alloy towers / scaffold or stand on any part of it other than the floor boards;
•at no time will anyone access/ egress the scaffold other than at ground level or stair case;
•only trained personnel to make alternations to scaffold; and
•no employee permitted to interfere with any item of a scaffold, if found interfering with scaffolding elements – employee will be suspended from site and face a disciplinary hearing for gross misconduct.
All documentation, instruction and general safety information e.g. toolbox talks were provided in a language, form and manner that employees could understand and a bilingual speaker was on the Manchester site at all times to communicate health and safety considerations on day-to-day operations.
On 21st January 2016 the Respondent conducted a briefing with all relevant employees on the Method Safety & Risk Assessment Statement, including the Complainant, and all signed same. Prior to the commencement of work a toolbox talk was held on working at heights.
Mr Hutchinson told the Court that on or about 2nd February 2016 the United Kingdom's Health & Safety Executive (HSE) submitted a Report to the Respondent's Managing Director pursuant to the United Kingdom's Health and Safety at Work Act 1974 following an inspection of the site in Manchester carried out on 28th January 2016. This letter (including photographs) set out the contraventions witnessed during the inspection including a breach of safety regulations where the Respondent’s employees“appeared to have adapted the scaffold to provide an unsafe working platform, this indicates that the scaffold had not been sufficiently designed ...”
The Inspector’s report continued to say“I was minded to serve your company with an immediate Prohibition Notice in relation to the situation seen in the photograph above. I decided to use my discretion on this occasion as your employees were all removed from site by the Principal Contractor and so although the hazard remained, no one was on site... "
The main contractor’s Foreman confirmed for the Respondent that the person responsible for the above identified contravention of health and safety was the Complainant. The main contractor issued the Complainant with a "red card" for a serious breach of health and safety meaning that the Complainant was barred from attending the site any further. Two other employees of the Respondent were also subjected to disciplinary action as a result of breaches of health and safety.
By letter dated 3rd February 2016 the Respondent informed the Complainant of a meeting at the Respondent's offices in Carlow to investigate the matter. It advised him that he could bring a representative. By letter dated 17th February 2016 the Respondent advised the Complainant that having carried out an investigation he had a case to answer and summoned him to a disciplinary meeting to be held on 19th
February 2016 at 10 am to consider the following breaches by the Complainant: -
- •breach of the method and safety statement Rev 02 issued on 20th January 2016;
•breach of the Respondent's working at height safety procedure by working on an unsecured platform;
•breach of the Respondent's working at height safety procedure by not wearing the safety harness provided; and
•a breach of the necessary trust and confidence between theComplainant and the Respondent.
The letter informed the Complainant of his right to be accompanied by a work colleague or trade union official, notified him of the possible sanctions which could potentially include dismissal and advised him that he was free to ask any questions regarding the process, policy or content of the letter.
A disciplinary meeting was held on 19th February 2016 chaired by Mr. Noel Aherne, Financial Controller. The Complainant was accompanied by a work colleague. Mr Hutchinson said that the Complainant was permitted to ask questions, challenge the assertions made regarding his conduct and invited him to provide mitigation arguments in respect of the alleged conduct. Ultimately the Complainant accepted and admitted what had occurred.
By letter dated 23rd February 2016 the Respondent informed the Complainant of its decision to dismiss him. The letter recounts the Complainant's explanation for what had occurred i.e. that he observed what he thought to be a loose nut and then left the secured scaffolding in place but stood on unfixed timber boards to attend to the loose nut. The letter recounted the Complainant's account that he stood on same for about a minute or so, and that he didn't think about what he was doing. The letter also recounts that the Complainant admits he did not speak to the Respondent's site foreman before exiting the main scaffold. The Complainant apologised for his actions.
Mr Hutchinson said that the letter records how Mr. Aherne had carefully considered the matter, including potential alternatives to dismissal, but had concluded that the Complainant was guilty of gross misconduct and that dismissal was the only appropriate sanction. The letter informed the Complainant of his right to appeal within five days of receipt of the letter and informed the Complainant that his P45 would issue without delay together with all outstanding entitlements including accrued annual leave. As the dismissal was for gross misconduct, neither notice nor payment in lieu of notice was due.
The Complainant, through his BATU trade union representative appealed the decision. An appeal meeting was convened on 22nd March 2016 at the trade union’s offices. Mr. Liam Hughes, Director, was nominated by the Respondent to hear the appeal. The Complainant attended with a translator and his union representative. Mr Hughes upheld the sanction of dismissal. In particular, Mr. Hughes was of the view that a lesser form of sanction would not be appropriate under the circumstances. The outcome of the appeal was communicated to the Complainant by letter dated 7th April 2016.
Following the outcome of the appeal the Respondent received a letter from the Complainant’s legal representatives dated 19th April 2016. Mr Hutchinson submitted that it was noteworthy that the only issue raised regarding the Complainant's dismissal was the level of sanction applied. No issues were raised regarding the underlying conduct nor with the procedures adopted by the Respondent.The Complainant had essentially argued that the sanction he suffered as a result of his admitted misconduct was disproportionately severe.
Mr Hutchinson told the Court that health and safety is of paramount importance to the Respondent hence the significant training afforded to the Complainant and the seriousness of the Complainant's misconduct in this regard.
Mr Hutchinson submitted that the procedures adopted by the Respondent were fair and were consistent with S.l. No. 146 / 2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000. He contended that the sanction of dismissal was appropriate under all of the circumstances on the basis of the following:-
- a.level of applicable prior training undergone by the Complainant;
b.very specific instructions given to the Complainant as regards activity on scaffolding at the site in Manchester;
c.severity of the breach itself;
d.potential risks to the health and safety of the Complainant and third parties, as a result of the Complainant's conduct;
e.difficulties which the Complainant's conduct caused for the Respondent, and for the main contractor on site;
f.involvement of a health and safety regulator in the United Kingdom;
g.Complainant's imperfect, prior disciplinary record; and
h.deterioration of the relationship of trust and confidence between the parties as a result of the misconduct.
In support of the Respondent’s actions in dismissing the Complainant Mr Hutchinson cited of Noonan J. in the High Court case ofThe Governor&Company of the Bank of Ireland v. James Reilly[2015] IEHC 241, where the High Court held: -
- "It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer.
The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.
I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v. Purcell [2012]23 ELR 189, where she commented (at p. 4):- 'Reference is made to the decision of the Court of Appeal
in British Levland UK Ltd v. Swift [1981] IRLR 91 and the
following statement of Lord Denning MR at page 93:- "The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.'"
It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken." - 'Reference is made to the decision of the Court of Appeal
Summary of the Complainant’s Case
Mr Eamonn O’Hanrahan, Solicitor, E.M. O’Hanrahan, Solicitors, on behalf of the Complainant, submitted that the Complainant was unfairly dismissed. He said that the Complainant had a minor disciplinary history with the Respondent and had an unblemished health and safety record. On 28th January 2016, whilst at work, the Complainant observed that a bolt required tightening and took the initiative to tighten same. In doing so he left the main scaffold and accessed an unsecured platform. He was dismissed without notice on 23rd February 2016arising from the incident.
Mr O’Hanrahan submitted that the Complainant was disciplined in the aftermath of an HSE inspection as a result of which the Respondent's general work practices were condemned. He asserted that the severity of the Complainant's punishment was directly connected with the discovery of multiple health and safety infractions by the Respondent to the point where it felt compelled to dismiss its very experienced employee. He maintained that the Complainant was used as a scapegoat.
Mr O’Hanrahan contended that the Complainant was issued with the most severe sanction available in circumstances where he had significant service of more than ten years with the Respondent and had an unblemished health and safety record. In his defence, Mr O’Hanrahan said that the Complainant was at the material time acting to neutralise a serious health and safety hazard and that he was working under time pressure imposed by agents of the Respondent. At the time the Complainant was working for the benefit of the Respondent and he made no financial or other personal gain by his actions or caused any financial or other loss to the Respondent.
Mr O’Hanrahan said that the Complainant's conduct was only one issue in the HSE’s Report which identified many different health and safety infractions and the variety of health and safety infractions perpetrated by the Respondent was indicative of systemic failings rather than being confined to the actions of any particular employee. He asserted that dismissal was unjustified in circumstances where the Respondent's mode of operation, as highlighted in the HSE Report, was to act in contravention of health and safety guidelines and regulations.
Mr O’Hanrahan submitted that the Respondent was in breach of normal disciplinary procedures in not providing the Complainant with copies of the HSE Report nor with a copy of the minutes of the subsequent Site Safety Meeting. He told the Court that while the Complainant had originally sought to be re-engaged by the Respondent, he was now seeking compensation for the alleged unfair dismissal as he had returned to Poland, three months after his dismissal, where he has secured employment and intends to remain there.
Summary of Witnesses Testimony:
- Mr Noel Ahearne, Financial Controller
Mr Noel Ahearne, Financial Controller with the Respondent since 2008, gave evidence on behalf of the Respondent. He outlined to the Court the importance the Respondent attaches to the issue of health and safety and that the Complainant had undergone all the necessary training prior to commencing work on the site. He said that when the Complainant admitted to the breach of safety, he was accepting that he put his own life and the lives of others at risk. Mr Ahearne said that by his actions the Complainant also put the Company’s reputation at risk. He said that the actions of the Complainant in standing outside the secure scaffolding were so serious that no sanction other than dismissal would have been appropriate in the circumstances. The Complainant had signed off on the training to say that he had undertaken the required training, including working at heights, and therefore the appropriate sanction was dismissal.
Mr Ahearne denied the allegation that the Complainant was used as a scapegoat by the Respondent. He said that two other employees responsible for breaches of safety had also been identified as a result of the HSE inspection. One was demoted indefinitely and given a verbal warning and the second was invited to a disciplinary hearing, however, he refused to attend and resigned. Mr Ahearne said that in his view the Complainant’s wrongdoing was far more serious than the offences the other two employees were accused of, viz, (i) not attending a site safety meeting and (ii) not wearing a protective face mask.
Mr Ahearne said that he had no reason to doubt the Complainant’s version of the events which gave rise to the HSE’s findings and Report regarding the safety breach. He admitted that the Complainant was invited to an investigation meeting, however, no such meeting took place. Instead he said that a disciplinary meeting was held as the Respondent was satisfied that the HSE’s Inspector’s Report and subsequent Site Safety Meeting minutes identified the Complainant as the person responsible for the breach of safety rules. He accepted that the latter documents were not furnished to the Complainant at any time during the disciplinary process.
Mr Ahearne informed the Court that as a result of the HSE inspection, the Respondent was required to cease work on the site for three days which had a financial cost to the Company.
- Mr Liam Hughes, Operations Director
Mr Liam Hughes, Operations Director of the Respondent, on behalf of the Respondent told the Court that he has been employed by the Respondent for seventeen years. He said that he was brought into the matter to hear the Complainant’s appeal. The appeal hearing took place in BATU’s offices where the Complainant was represented by a BATU trade union official and assisted by a colleague acting as an interpreter. Mr Hughes said that the Complainant accepted his wrongdoing and sought to return to work. The Complainant did not allege at that meeting that he was being used as a scapegoat.
Mr Hughes said that following the meeting he decided to uphold the decision to dismiss as the safety breach was so serious he needed to ensure that employees were working in a safe environment and did not want to put others at risk.
He said that he was disappointed that he had to make such a decision as the Complainant had over ten years’ service with the Respondent and over twenty years working in his trade. He said that he was a very experienced and valued member of the team and was conscious of the impact his dismissal would have on him and his family. However, he said that the Respondent could not take the risks associated with an employee disregarding health and safety on site. He disputed the Complainant’s contention that he was used as a scapegoat and he said that any other employee in similar circumstances would have been treated in the same way.
Mr Hughes said that if the Complainant felt under pressure then he should have discussed it with one of the Respondent’s two Supervisors on site. With regard to the HSE Inspector’s Report, Mr Hughes says that the area where the Inspector had particular concerns was an area that the Respondent had already finished its work in and the Respondent’s operatives were at that point working two floors above so that, besides the scaffolding breach, the other breaches identified by the Inspector were not its responsibility. On that basis Mr Hughes said that the Complainant had no reason to be in that area. He admitted that the issue regarding dust control identified by the Inspector was an issue that it needed to address and had addressed it.
Mr Hughes said that the Respondent considered the issue of health and safety of such importance that in 2013 it engaged the services of a safety expert to advise it on all safety matters, to report on any improvements it could make and to point out any area lacking in safety measures. He told the Court that the Respondent was in the process of being audited by an external body as part of its application for a ‘Safe T Cert’.
Mr Hughes accepted that the Complainant was not furnished with the HSE Inspector’s Report and the minutes of the subsequent Site Safety Meeting. He accepted that no investigation meeting was held with the Complainant. He was asked why he refused to supply a Reference to the Complainant when requested to do so by the Complainant’s trade union official at the appeal hearing. He replied that he could not write a letter to say that the Complainant had not been dismissed.
Mr Hughes denied that the Complainant was used as a scapegoat. He said that the major difference in the sanctions given to the Complainant and that given to the other employee who was disciplined was the potential loss of life. He told the Court that he was of the view that the dismissal was not disproportionate, it was the correct decision in the circumstances and the safety risks were too significant to warrant a lesser sanction. He said that with twenty years’ experience in the construction industry the Complainant should not have taken such a serious risk to his own life and the lives of others. He emphasised that the Complainant had been given the appropriate training.
- The Complainant
Findings of the Court
There is no dispute about the facts in this case. The Complainant breached the Respondent’s safety procedures when he worked on an insecure platform in order to tighten a nut on a stone erected on behalf of the Respondent. Taking account of the serious risks involved in his actions coupled with the level of training he received to ensure that such a situation should not occur, the Court finds that in the circumstances it was reasonable for the Respondent to treat the infraction as being very serious. The Court is satisfied that these actions by the Complainant could be regarded as being sufficiently grave to justify dismissal due to the serious risks involved and its impact on the business and reputational interests of the Respondent.
However, the Court notes that the Complainant was not given an opportunity to put his side of the events and a decision was made to discipline him without any recourse to mitigation on his behalf. In not conducting an investigation the Respondent was in breach of its own Disciplinary Procedures. The Court notes that the Complainant was never supplied with a copy of its Disciplinary Procedures in the first place and consequently could not have known what to expect. Furthermore, the Complainant was denied the two Reports that the Respondent’s decision to dismiss was based upon.
Taking account of the above factors, the Court finds that the manner in which the decision was made to dismiss the Complainant was lacking in procedural fairness and contrary to the principles of natural justice to which he was entitled. The Respondent came to a conclusion that the Complainant was guilty of a serious offence without giving him a sufficient opportunity to defend himself and/or to respond to the allegations made. His prior warnings were a factor in the decision making despite the fact that such warnings had lapsed.
InGearon v Dunnes Stores LimitedUD367/1988, the EAT held:-
- “The right to defend herself and have her arguments and submissions listened to and evaluated by the respondent in relation to the threat to her employment is a right of the claimant and is not the gift of the respondent or the Tribunal… As the rights is fundamental one under natural and constitutional justice; it is not open to this Tribunal to forgive its breach”.
The Court is of the view that a failure to properly and fully investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair and sufficient opportunity to advance a defence will generally take the decision to dismiss outside the range of reasonable responses which will probably render any resulting dismissal unfair.
In all the circumstances in this case, the Court has come to the conclusion that the decision to dismiss the Complainant was tainted with procedural unfairness. Accordingly, he is entitled to succeed in his appeal.
Redress
The Court has taken account of the losses suffered by the Complainant arising from his dismissal. The Court has also taken into account, as it is required to do by section 7(2)(b) of the Act, the extent to which the Complainant’s conduct contributed to the loss that he suffered. In that regard, the Court is satisfied that the Complainant, by his conduct, contributed to a significant degree to his dismissal and this has been taken into account in measuring the quantum of compensation that should be awarded.
Having regard to all of these considerations the Court awards the Complainant compensation under the Act in the amount of €6,580.00
Determination
The Complainant’s appeal is allowed and the Decision of the Adjudication Officer is set aside and substituted with this Determination. The Court orders the Respondent to pay the Complainant compensation in the sum of €6,580.00.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
20 December, 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.