Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00005376-001

21/06/2016

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

CA-00005376-002

21/06/2016

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

CA-00005376-002

The Complainant had worked for the Respondent Company for over ten years. In late January 2016 a safety related incident took place on a building site in Manchester in the UK. On the 23 February 2016 he was dismissed from his employment. He accepts that a Reprimand was called for but the Dismissal decision was completely Disproportionate when a range of other options were available to the Respondent. At the time of the incident he was working under time pressure from the Respondent and made no financial gain or other benefit from his actions. His actions at the time were, he felt, in the best interest of the Respondent.

He strongly rejects the Respondent claim that a “breach of Trust “ had taken place with his employer.

(2)    Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973  

CA-00005376-001

(1)     Unfair Dismissals Act ,1977 complaint - CA-00005376-002

The Respondent is a specialist Building Company operating in the Construction Industry in the UK and Ireland. They operate as Sub Contractors to main Contractors on major building projects in the UK. Much of their work is done “At Height”. Rigorous Statutory Safety Regulations apply and extensive safety training is provided for all staff both by the Respondent but also by the main Contractor.

In late January 2016, on a site in Manchester, an Inspector from the UK Health and Safety Executive discovered a number of Safety breaches including a serious Working at Height infringement.

The Respondents work force was removed from the site by the Main Contractor and the Complainant was “Red Carded” – effectively prohibited from working on the site.

The MD of the Respondent was written to by the UK HSE on the 2^nd February 2016. Following preliminary inquiries the Complaint was suspended. A Disciplinary meeting was held in Carlow, Ireland on the 19^th February and the Complainant was summarily dismissed on the 23^rd February for Gross Misconduct.

An Appeal against the Dismissal decision was heard in the BATU Offices on the 22^nd March but was unsuccessful.

The Complainant then engaged Hanrahan and Co, Solicitors. In correspondence they accepted that an incident had occurred but protested the severity of the decision to Dismiss suggesting instead that a Final Written Warning would have been more appropriate.   Through their Solicitors the Respondent replied that following careful consideration the Dismissal decision was the only appropriate course of action. A very serious and irreparable Breach of trust had taken place with the Complainant.

The Dismissal is fair and was a reasonable response to a very serious Safety Incident.

(2)    Minimum Notice Complaint - CA-00005376-001

The issue of Minimum Notice does not arise as the Complaint was summarily dismissed for Gross Misconduct.

The key questions in this case are was the Dismissal unfair and was it proportionate as a disciplinary action. ?

(1)    The Legal Position – The Unfair Dismissals Act, 1977 and S.I. 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures – Natural Justice.

It is accepted law that it is not the function of an Employment Appeals Tribunal or by extension an Adjudicator to re-investigate a Dismissal decision. The role of the Adjudicator is to ensure that Natural Justice was observed and that any decisions were “Reasonable” i.e. were what a reasonable employer would do in similar circumstances.

In Frizelle v New Ross Credit Union Ltd. [1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

Likewise Section 6 , 7 ,8 9 and 10 of the Code of Practice SI 146 of 2000 state

In the case in hand detailed procedures were followed, proper correspondence was issued and the right to representation was afforded. The question of language was considered and a colleague, a fellow national of the Complainant, attended.

No fault could be found here on Procedural grounds. Training Records and Procedures were presented in evidence. The basic fact of the case, the safety incident, was agreed between the parties. Due care was given to consideration of options other than the dismissal decision. Evidence was given on this point in response to questioning by the parties.

The Respondent Mangers, who gave evidence at the Hearing, were I felt of sufficient independence, to conduct the Disciplinary meetings. A BATU Official and a colleague, a fellow national, of the Complaint were present at the Appeal Hearing. Language did not seem to pose a problem. The consequences of departing from Health and Safety regulations were clear to all employees – in fact the Complainant had been given minor sanctions for previous lesser Health and Safety infractions.

The only issue centred on whether or not the UK HSE Report was presented to the Complainant in good time. However it was clear that the Complaint did not factually contest the issues involved but rather the severity of the sanction. The timing of the receipt of the UK HSE document was not a critical factor in this context.

It was clear that correct procedures had been followed by the Respondent in keeping with the cited legal Authorities and S.I. 146.

(2)      The “Reasonableness” of the Decision.

The Respondent’s legal representative pointed to the 2015 High Court case of Bank of Ireland v James Reilly [2015] IEHC 241 at paragraphs 38-39.

In the cited case reference is made to the UK case of Leyland UK v Swift [1981] IRLR 91 and the statement of Lord Denning regarding the “Band of reasonableness “ in Unfair Dismissal cases. The case of AIB v Purcell [2012] 23 ELR 189 was also quoted. A quote was cited from Judge Linnane in that case

“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”.

In the case in hand the evidence pointed clearly to a major Safety breach at the Manchester site. The Report of the UK HSE Inspector was not to be taken lightly. The Main Contractor had removed the Respondent’s personnel from the site until the Safety issues were sorted out. The Complainant had been personally “Red carded” - effectively banned from the site. The financial consequences were likely to be most serious for the Respondent’s business.

The Breach of trust argument was crucial – extensive evidence was given of most detailed Safety Training and the rigorous safety procedures on the site. It was clear that Safety was treated most seriously at both Respondent and Main Contractor levels. It this context the actions of the Complainant were hard to understand.

(3)       Final conclusion.

In final conclusion and referring again to the “Band of reasonableness” the decision to Dismiss was within the parameters of this principle. Redmond in Dismissal Law in Ireland 2007 - Tottel Publishing at Section 13.23 Page 252 /253 gives a good summary of the principles involved. No significant procedural flaws were evident in the Respondent’s handling of the case.

Accordingly having considered the evidence both oral and written and the legal precedents I find that the claim for Unfair Dismissal is not well founded and has to be dismissed.

Minimum Notice Complaint - CA-00005376-001

As the Dismissal was not found to be unfair the Minimum Notice claim has to fall as well.