Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Logistics Company

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-00003837-001

14/04/2016

The complainant was employed driving a ‘Reach’ truck (a type of fork lift vehicle).

He had been involved in an incident in June 2016 which led following a disciplinary process to his summary dismissal but this sanction was reduced on appeal to a ‘conditional reinstatement’, which involved some re-training and restrictions on his operations.

Specifically, he was prohibited from operating one specific vehicle an MHE.

There was a second incident on January 5^th 2016 which has given rise to the current complaint and adjudication.

The respondent says that Health and Safety compliance is critical in its operations.

In the incident giving rise to the current proceedings the complainant parked the ‘Reach truck’ with the forks obtruding over a pedestrian walkway and caused damage to a freezer door while maneuvering a Power Pallet Truck (PPT). This was at a time when he did not have a licence to operate a PPT.

In fact, the PPT with which the complainant collided had been parked in this inappropriate location by himself. Damage was caused to the value of €727.91 but the incident had the potential to cause serious injury to other employees and to him.

He was suspended on full pay while an investigation took place and later a disciplinary hearing took place on February 25^th 2016 at which he was represented by his trade union.

The complainant accepted that he had been at fault and guilty of an error of judgement and a decision was taken to dismiss him.

This was done in light of his being on a final written warning arising from the incident in August 2015, and in particular given that he had breached a specific instruction not to operate the MHE vehicle until he was re-trained.

The Decision Maker gave evidence that he felt there had to be a ‘step’ taken in view of the complainant’s previous final written warning. He also was concerned that there was a risk of a repetition and that the complainant had failed to learn from the previous incident and the subsequent training.

He had already been given a ‘second chance’.

He appealed on the basis that the decision to dismiss him was ‘too harsh and unfair’ and an appeal hearing took place on March 19^th 2016, at which he was again represented by his trade union. He was also provided with all documents which had been created in the course of the investigation.

The appeal was not successful and the dismissal was confirmed.

The respondent says that the dismissal was justified on the basis that serious breaches of its Health and Safety policy had taken place, he had been provided with refresher training in the operation of the Reach truck, and he was on a final written warning.

The respondent says it acted fairly at all times throughout the disciplinary procedure.

The facts outlined above are not in dispute although the complainant says that the January incident was ‘minor’ in that it resulted in minimal damage to stock or property.

The complainant says that the sanction of dismissal was disproportionate.

He also says that while he was on a final written warning the sanction of dismissal in the first case, later reduced, was also inappropriate for a first offence.

While noting the importance of Health and Safety considerations the respondent’s zero tolerance attitude to breaches is not realistic and more training is need to achieve this. The complainant did not deliberately breach the policy. The purpose of the disciplinary policy should be to help improve standards.

Also, the complainant had nineteen years service which was not taken into consideration.

In relation to the fact that he had operated machinery without the correct license this was known to, and tolerated by his supervisor.

Other sanctions were available to the respondent such as a period of unpaid suspension.

I have considered all the relevant evidence that was laid before me, both before and in the course of the hearing.

There are three pillars involved in an assessment of the fairness of a dismissal.

In order for a dismissal to be fair there must be sufficient grounds to support disciplinary proceedings against the employee related to performance or conduct.

The onus under the Act falls on the employer to justify the dismissal.

Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is conducting disciplinary procedures in order to protect the rights of the employee and ensure that justice is done.

These are not particularly onerous and are generally well known.

They are referred to by such terms as fair procedure and natural, or constitutional justice. Many, if not most cases of unfair dismissal are argued on the basis of facts that are generally not in dispute and the outcome normally turns on alleged inadequacies in the procedures and/or the appropriateness of the sanction, which is the third pillar.

That is the situation in this case, as the complainant has not disputed the facts and says that the sanction was excessive.

I cannot agree with the complainant that the company did not act ‘in a fair and just manner’ as far as the procedure was concerned. Both adjudicators at the initial disciplinary hearing and the internal appeal gave evidence. The respondent conducted the process to a good standard of fairness.

There is a fourth consideration which relates to the role of the adjudicator.

It has been well accepted for many years that the adjudicator (as with the EAT) should not substitute their view for that of the decision maker, except where there are significant procedural flaws or the sanction falls outside the range of reasonable sanctions.

The complainant based part of his complaint on the contention that the original sanction of dismissal following the first incident, reduced to final written warning was too harsh and but for that he might have escaped the ultimate sanction on this occasion.

This is not a sound argument.

He accepted and acquiesced in that decision and it is too late in the day to rely on that to make his case in respect of the current complaint.

It is certainly unfortunate that the complainant should have had two such incidents within a six month period after such long, incident free service. But, he may have used such credit as he had accumulated in that regard in respect of the first incident.

But all that the respondent is required to show is that the decision on sanction was within the ‘band of reasonable responses’ as it is described.

The Circuit Court s decided in its decision in Allied Irish Banks PLC v Purcell [2012] 23 ELR 189 in which Linnane J. stated as follows:

The correct test is: was it reasonable for the employer 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 another view’.

In particular, the complainant’s representative sought to diminish the significance of the incident which the respondent saw as having serious health and safety implications. In that aspect of the matter an Adjudicator has no business going behind the decision of the respondent as to its evaluation of what constitutes a potentially serious health and safety incident in its business.

Accordingly I conclude that the respondent has discharged the burden of proof required by the Unfair Dismissals Act and I find that the dismissal was fair for the reasons set out above and the complaint fails.

I do not uphold complaint CA-00003837-001 and the complaint is dismissed.

Unfair dismissal, fair procedure, sanction with reasonable range.