FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : ENVA IRELAND LIMITED T/A ENVA (A WASTE TREATMENT AND DISPOSAL COMPANY) (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - GERRY DAVIS (REPRESENTED BY MIDLAND LEGAL SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Shanahan |
1. An appeal of an Adjudication Officer's Decision No: ADJ-00002527.
BACKGROUND:
2. The Worker appealed the Recommendation of the Adjudication Officerto the Labour Court on 29 November 2016 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 3 May 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Gerry Davis against an Adjudication Officer’s Decision ADJ-00002527given under the Unfair Dismissals Act 1977 - 2007 (the Act) against his former employer Enva Ireland Limited t/a Enva that he was unfair dismissed from his employment. The Adjudication Officer found in favour of Mr Davis’ claim, she found that he contributed 90% to his dismissal and awarded him the sum of €3,700 in compensation.
In this Determination the parties are referred to as they were at first instance. Hence Enva Ireland Limited t/a Enva is referred to as ‘the Respondent’ and Mr Gerry Davis is referred to as ‘the Complainant’.
The Complainant appealed against the decision of the Adjudication Officer relating to the following:-
- (i)The finding of contributory fault against the Complainant in respect of his dismissal, and/or
(ii)The level of contributory fault held against the Complainant.
Background
The Respondent is a company providing solutions for the treatment and disposal of a diverse range of waste to both public and private sector customers. It is structured into six divisions with each division focusing on a certain business area. It has four locations in Ireland, Portlaoise (Head Office), Shannon, Cork and Dublin.
The Complainant was employed as a Field Services Operative from 25th July 2012 to the date of his dismissal on 17th December 2015. He worked at a number of customer locations in different parts of the Country from week to week but was principally located at the Respondent’s depot at Portlaoise. He was paid €13.50 per hour, 40 hours per week. His work involved e.g. tank cleaning jobs and garage forecourt maintenance work at various industrial and retail sites.
On 19th October 2015, the Respondent received a complaint from a key customer, Irish Rail, Mallow, Co Cork to say that the Complainant had been stopped by an Irish Rail manager as he crossed over 3 x live railway lines whilst he was making his way to the toilet. He had not been wearing his high vis clothing at the time. Furthermore, he had crossed back over the railway lines after being reprimanded and warned not to do so.
Summary of the Respondent’s Position
Ms Mairéad Crosby, Regional Director, Ibec, on behalf of the Respondent stated there were no substantial grounds to vary the Adjudication Officer’s Decision. The Complainant was dismissed from his employment on the 8th December 2015 for gross misconduct following a full and fair investigation. He did not appeal his dismissal.
Ms Crosby said that that having crossed the 3 x live lines on the first occasion, the Complainant was approached by Mr Brian Gardiner, Station Manager Mallow and advised he was not allowed to cross the live lines and he was to wear a high vis at all times. Should he wish to use the facilities on site he was to ring ahead and an Irish Rail member of staff would escort him to the facilities or he could cross via the pedestrian overpass.
Mr Crosby stated that the Complainant’s actions were viewed as a major incident from a health and safety point of view. She submitted this on the basis of the following;-
- i.a representative of Irish Rail confirmed that the Complainant would not be allowed back to site as he had crossed the lines again on the way back from the toilet facilities after being warned not to do so;
ii.representatives of Irish Rail stressed that trains can be travelling at 60/70 mph and the trains are quite silent;
iii.safety regulations are in place to ensure that crossing live lines is minimised where possible and where allowed it is only in very controlled conditions;
iv.Senior Management of Irish Rail banned the Complainant from Irish Rail sites and his contractor card Personal Track Safety (PTS) (ref. Irish Rail) was blocked pending the Respondents internal investigation;
v.a "Hazard4" incident was reported to Irish Rail Head Office on foot of the incident and in their own internal Health and Safety training footage of the incident will be used as a case study of 'what not to do';
vi.the Operations & Compliance Manager and Key Account Manager of the Respondent were immediately summoned to a meeting with Irish Rail to discuss the seriousness of the incident, which they subsequently did on 23rd October 2015;
vii.the Respondent as a company was put on a final warning across all Irish Rail sites as a result of the seriousness of the incident;
viii.the customer acknowledged that there had never been any incidents with the Respondent in all the time they had been contracted into Irish Rail and that they had never seen an incident like this from the Respondent or from any other contractor;
The Complainant was suspended by Mr Ryan O'Donnell, Operations & Compliance Manager on 20th October 2015 and was advised that an investigation would be conducted into allegations of gross misconduct. This was on the basis that:-
- (i)the Complainant may have wilfully breached safety rules –
- The Complainant had completed Contractor Personal Track Safety Induction with Irish Rail on 26th May 2014;this training included a module entitled "Railway Environment & Track Terms" including safety, safety protocols and safety requirements ifwhen crossing railway lines as well as detailing specific responsibilities if he ever needed to go "on or near theline";
(iii)his conduct may have brought the company into disrepute. - The Complainant had completed Contractor Personal Track Safety Induction with Irish Rail on 26th May 2014;this training included a module entitled "Railway Environment & Track Terms" including safety, safety protocols and safety requirements ifwhen crossing railway lines as well as detailing specific responsibilities if he ever needed to go "on or near theline";
As a result the Complainant's employment with the Respondent was terminated and he was paid two weeks’ pay in lieu of notice. He was given the right to but did not appeal the decision.
Ms Crosby stated that the Complainant’s actions represented a fundamental breakdown in the trust relationship between the employer and employee and his misconduct goes to the root of the contract of employment. She said that this position has been upheld by the Employment Appeals Tribunal on a number of occasions, including inKnox Hotel and Resort Ltd. UD 27/2004,where the Tribunal stated that:-
"[The claimant's actions] destroyed the respondent's trust and confidence in the claimant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal"
The Complainant was afforded all benefits of fair procedure, in line with the Respondent's established policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice.
In addressing the sanction imposed by the Respondent, Ms Crosby referred to the principles to be applied in cases of gross misconduct which she said have been clearly established over time, and the test as set out inLooney& Co.Ltd v Loonev. UD 843/1984is as follows:-
- "It is not for the Tribunal to seekto establish the guilt or innocence of the claimant, nor isit for the Tribunal to indicate or consider whether we, in the employer's position, would have acted ashe did in his investigation, or concluded ashe did ordecided ashe did, as to do sowould substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what areasonable employer in the same position and circumstances at that time would have done and decided and to set this up as astandard against which the employer's action and decision be judged. "
If the Respondent had not disciplined the Complainant appropriately, it would have given the impression to other employees and indeed their client Irish Rail, that such conduct was not viewed by it as incorrect, when in fact the Respondent made it very clear in its disciplinary procedures and it is identified in the Contractor Personal Track Safety Induction that this conduct was not acceptable. As such the Respondent's decision to dismiss was reasonable, fair and appropriate in the circumstances, and no unfair dismissal took place.
Ms Crosby contended that the actions of the Complainant destroyed the Respondent's trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. Furthermore his actions contributed fully to his dismissal therefore he is not entitled to seek any redress under the Acts. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions. InMurray v Meath County CouncilUD43/1978 the Tribunal viewed it as appropriate not to award any redress to the claimant in light of his inappropriate actions and inBesebvei v Rosderra Irish Meats Group LimitedUD37/2014, the Tribunal stated:
- "It is unacceptable in circumstances where a properly conducted Risk Assessment has led to the introduction of a safety measure that an employee should arbitrarily decide not to comply with the measure ..... "
InAndrew Byrne v Wicklow County Council,UD656/2008where the Tribunal held that there could not be any compromise in relation to the important matter of health, safety and welfare at work:-
- "... The Tribunal very carefully considered the evidence adduced, statements submitted and documents put forward .... the claimant's work record and the good service is acknowledged. However, it is the considered conclusion ofthe Tribunal that the investigation process was reasonably satisfactory and that there can be no compromise in relation to the important matter ofhealth, safety and welfare at work. Therefore it is the unanimous determination ofthe Tribunal that the claim under the Unfair Dismissals Acts,1977to 2001 ... .fails"
Summary of the Complainant’s Case
Mr Gerry Meagher, Midland Legal Solicitors, on behalf of the Complainant disputed the dismissal. He said that while finding in favour of the Complainant theAdjudication Officer held that theComplainanthad contributed 90%. It is that finding that is on appeal.
Mr Meagher said that on 19th October 2015,the Complainant was due to undertake work duties at the Irish Rail Station at Mallow,County Cork,where he was due to de-foul thecarriages of a train which was to arrive at Mallow Railway Station. The de-fouling takes place in an area which is off a side track and which is separate from the actual Station building.
As he arrived at Mallow Railway Station,he received a phone call from his wife.She was extremely distressed.She gave to him the news that her father had been diagnosed with terminal cancer. The news was hugely upsetting to him. Following the phone call,the Complainant was in a very distressed and distracted state. A short time later he needed to attend the toilet.The only toilets available to him were on the main platform of the Station. On that day he had omitted to put on his high-vis sleeveless vest and did not realise that he was not wearing same as he went towalk from his work position to the toilet.He crossed at the designated crossing points on the railway track,looking to ensure that it was safe to do so.There were no trains or activity taking place and it was safe for him to cross. When he was on the relevant platform he was approached by the Station Master who pointed out to him that he ought to be wearing a high-vis vest and that this was a requirement. The Station Master advised him to ensure on future occasions that he would be wearing the high-vis vest.The Complainant apologised to the Station Master who did not express any concern or place any restriction upon him returning to his workplace, nor did he advise him to wait to be accompanied by a staff member of Irish Rail.
Mr Meagher said that there were no previous complaints against the Complainant.He was suspended on 20th October 2015. Irish Rail made a complaint to the Respondent Company.An investigation meeting took place on the 22nd October 2015. A disciplinary meeting took place on the 11th November 2015. He was dismissed by way of letter dated 8th December 2015 which he received on 17th December 2015.
Mr Meagher submitted that the degree of contributory fault as apportioned by the Adjudication Officer was grossly excessive in all of the circumstances and in that regard hesubmitted the following points:-
- •The Complainant’s conductamounted to a human error.
•There were extreme extenuating circumstances giving riseto the error, which the Respondent failed to appreciate.
•There was no injury and no danger caused to any third party/s or to theComplainant.
•In all other respects theComplainantacted in accordance with good practice.
•TheComplainantwas at all times, co-operative and pleasant.
•His conduct was not wilful.
•The Respondent failed to take into account theComplainant’sexemplary work record.
•The Respondent failed to act in a proportionate manner.
•The Respondent failed to consider deploying theComplainantto other sites/work duties. The Complainant had held a number of different roles as a Field Operative for the Respondent.
•The Respondent claimed that theComplainant's conduct had been responsible for damage to the relationship with the client.While it is acknowledged that the client did raise the matter by way ofa complaint, there had been several major ongoing matters of complaint with the Respondent.
Discussion and Findings of the Court
Witness testimony of the events as outlined was given by the following:-
- The Complainant;
and on behalf of fthe Respondent by:
- Mr Ryan O’Donnell, Operations and Compliance Manager;
Mr Simon Dick Managing Director gave evidence to the Court.
It is noteworthy that the Respondent did not appeal the finding of unfair dismissal; however, it accepted the Adjudication Officer’s Decision that the Complainant contributed 90% to his dismissal. On that basis the Court does not disturb the finding of unfair dismissal. The Court questioned the Respondent’s witnesses as to the consideration or otherwise given to placing the Complainant in alternative employment. It was explained to the Court that due to the nature of its work that health and safety considerations were of critical importance and in circumstances where the Complainant had been found to be in breach of such safety regulations it could not have the confidence in him to perform alternative tasks.
In reaching its conclusion the Court notes the following:-
- •The Complainant had received extensive training in the safety critical nature of crossing the railway lines; he had completed Contractor Personal Track Safety Induction with Irish Rail, which included a module entitled “Railway Environment & Track Terms”.
•He was not wearing his high-vis vest on the day in question when he crossed the railway lines. This was a serious breach of Irish Rail’s rules and regulations.
•The Station Master had reprimanded him for his breach of procedures. The Complainant apologised for the breach of safety and promised not to do it again. A short while later he repeated the offence.
•The breach was considered so serious by Irish Rail that immediate action was taken. The Complainant was taken off the premises, the Respondent was called to task over the incident and the incident contributed to the situation where the contract with Irish Rail was not renewed.
•The nature of the Respondent's business is such that all roles involve potential hazards. The Respondent lost confidence in the Complainant’s ability to recognise and respect safety critical issues, despite having being specifically trained in such issues and having being reprimanded only moments beforehand. While he had apologised for the breach and promised not to repeat it, he proceeded to do so and in doing so failed to appreciate the seriousness of the matter giving rise to the Respondent’s loss of confidence in him.
In line with the EAT decision inBesebvei v Rosderra Irish Meats Group Limitedthe Courtfinds it unacceptable that an employee should arbitrarily decide not to comply with health and safety measures where such strong emphasis has been placed on it, in a situation of potential danger.
In such circumstances, the Court is of the view that it was not unreasonable of the Respondent not to offer him an alternative role within the Company. The Court accepts that the Complainant contributed to his own dismissal and concurs with the findings of the Adjudication Officer that he contributed 90% to his dismissal. Accordingly, the Court upholds the Adjudication Officer’s Decision and rejects the Complainant’s appeal.
Therefore, the Court orders the Respondent to pay the Complainant the sum of €3,700 within a period of six weeks from the date of this Determination.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
16 May, 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.