FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : KEELINGS LOGISTICS SOLUTIONS UNLIMITED COMPANY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SUNNY ALEX OKEKE (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No: ADJ-00010124 CA-00013150-001.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 16 May 2018. A Labour Court hearing took place on 13 December 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Sunny Alex Okeke against the decision of an Adjudication Officer ADJ-00010124, CA-00013150-001 under the Unfair Dismissals Act 1977 – 2015 (the Acts) in his claim of unfair dismissal against his former employer, Keelings Logistics Solutions Unlimited Company. The Adjudication Officer held that the Complainant was not unfairly dismissed, however, she did not find that it was a dismissal for gross misconduct and on that basis made an award in a separate claim under the Minimum Notice and Terms of Employment Act, 1973.
For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Sunny Alex Okeke will be referred to as “the Complainant” and Keelings Logistics Solutions Unlimited Company will be referred to as “the Respondent”.
Background
The Complainant was employed by the Respondent from 25thJuly 2005 as a Warehouse Operative, until his dismissal on 7thJune 2017.
The Respondent is a subsidiary of Keelings Group which comprises a number of separate business units in growing, purchasing, sales and distribution of fresh foods and flowers in Ireland and Europe. The Respondent provides third party facilities management service to Tesco Ireland.The workplace involves constant movement whereby forklifts are moving goods from one end of the centre to the other.
The Court notes that there was no dispute regarding the facts at issue.
An incident occurred on Friday, 12thMay 2017 where the Complainant had an accident while loading on Bay 14 with his Low Lift Order Picker (LLOP). This occurred due to an error by the Complainant which resulted in the back wheels of the LLOP dropping over the edge of the bay. The Complainant attempted a number of times to lift the dock level up with his LLOP still on it to straighten out the lip. The leveller struggled under the weight of the LLOP and got stuck in the air with the LLOP on it. He then walked around the LLOP and pushed the cage to try and free it, he returned on a number of occasions to the control panel and tried to raise/lower the dock level with the LLOP on it. In attempting to rectify the situation, damage was caused to the dock leveller. At this point Mr Colfer, Warehouse Team Manager arrived on the scene and instructed the Complainant to stop what he was doing and suspended him from Loading. Mr Colfer immediately reported the incident to a Manager. The incident caused a substantial amount of damage and the bay remained out of service for several months.
The Complainant was called to an investigative meeting held on 20thMay 2017 with Mr John Derwin, Warehouse Team Manager, at which the Complainant was represented by his shop steward. In Mr Derwin’s report of the investigation meeting he concluded that the incident had not been caused deliberately and that the Complainant had taken full responsibility for the incident owing to his failure to follow health and safety training procedures. Mr Derwin was clear that the Complainant had not followed the correct procedures. He found that lack of concentration played a key part and the incident could have been avoided had the Complainant been more vigilant. Mr Derwin also concluded that the incident could have resulted in a more serious outcome and could have caused injury to the Complainant. He held that when the Complainant realised this he should have reported the incident to a Manager immediately, instead he made the decision to try and hide the accident, this action only increased the high risk of injury to him and was considered as another serious breach of health and safety. In his report into the investigation, Mr Derwin held that this was a crucial aspect to his investigation and coupled with the substantial cost resulting from the damage to company property, he recommended that the issue should be put forward for disciplinary action.
A meeting was held on 31stMay 2017 under the Respondent’s formal disciplinary procedure to discuss“Alleged Serious Breach of Health & Safety – Unsafe machine operation resulting in damage to company property”. The Complainant was represented by his shop steward. The meeting was conducted by Mr Terry Dowdall, Warehouse Team Manager. At that meeting the Complainant confirmed that he agreed with the report of the investigation meeting held on 20thMay 2017. The Complainant was asked if Mr Colfer had not come along would he have reported the incident, the Complainant replied that he would have.
In his report of the disciplinary meeting, Mr Dowdall held that having completed yearly loading training and manual handling refreshers the Complainant was well aware of the procedure for shutting down bays and the absolute requirement of abiding by site health and safety rules. However, the Complainant had failed to do so. He concluded that he found it hard to believe why he would have attempted to free a heavy piece of machinery from a mechanical system that was not designed to operate in the manner that he was operating it.
Mr Dowdall surmised that in the circumstances, it was more likely that the Complainant was hoping to free the LLOP and avoid having to report the incident and face possible investigation for a breach of health and safety. He concluded that although the Complainant had not deliberately intended to cause damage, his actions were grossly negligent and demonstrated a complete lack of awareness of his own health and safety. Mr Dowdall also found that there were inconsistencies in the Complainant’s account of how many times the Complainant has tried to lift the dock leveller with the LLOP on it.
Mr Dowdall considered the range of options open to him in terms of a disciplinary sanction and concluded that a warning or suspension would not be a sufficient sanction, given the fact that the circumstances were significant enough to give rise to place employees at risk of injury or fatality and could not be tolerated. Furthermore, he held that as the Complainant was inconsistent in his responses during the process, this also needed to be taken into consideration. Finally, he held that in all the circumstances the serious breaches of health and safety occurred as alleged and therefore, the matter was one of gross misconduct. Therefore, Mr Dowdall held that dismissal with immediate effect was the only fair and proportionate sanction applicable in the circumstances. The Complainant was given the right to appeal, which he exercised.
An appeal hearing was held on 22ndJune 2017, before Mr Damian Prendergast, General Manager. The Complainant was represented by Mr Kieron Connolly, SIPTU. Mr Prendergast considered the grounds of his appeal and concluded that the Complainant had failed to follow basic loading procedures. He noted that irrepairable damage was caused to the dock leveller. He also concluded that by not reporting the accident to his manager immediately as per health and safety procedures, he put his own safety and potentially the safety of his colleagues at risk. He surmised that had the Complainant managed to free the LLOP it could have led to a more serious accident occurring later in the night. In all the circumstances, Mr Prendergast upheld the decision to dismiss.
Summary of the Respondent’s Position
Mr Conor O’Gorman, Ibec, on behalf of the Respondent, contended that the dismissal resulted from the Complainant’s conduct and the dismissal was both substantially and procedurally fair. He contended that fair procedures were followed at all stages of the process. He stated that health and safety are taken very seriously in the company. He said that the Respondent cannot allow employees to put their safety or the safety of their colleagues at risk.
Mr O’Gorman said that the Respondent has a duty of care towards all its employees to ensure that they are provided with a safe place of work and as such it takes a zero-tolerance approach to breaches of health and safety. By ‘zero tolerance’ he explained that breaches of health and safety do not necessarily lead to dismissal, however, such breaches are always taken very seriously and treated as disciplinary matters, if necessary. He said that the Complainant had put himself and his colleagues in danger and had shown a blatant disregard for all Health and Safety regulations by failing to report the incident. The Respondent held that the Complainant was well aware of the absolute requirements of abiding by site health and safety rules and therefore considered his actions as grossly negligent. These factors coupled with inconsistencies in his account of the incident led the Respondent to conclude it had lost trust and confidence in the Complainant.
Summary of the Complainant’s Case
Mr Vivian Cullen, SIPTU, on behalf of the Complainant, alleged that the Complainant was unfairly dismissed when the Respondent failed to act proportionately when it made the decision to terminate the Complainant’s employment. He told the Court that the facts of this case were not in dispute.
Mr Cullen contended that after twelve years of service with the Respondent, the decision to dismiss was severe, disproportionate and unreasonable. He submitted that dismissal was not proportionate in all the circumstances. He contended that the objective pursued by the Respondent should have been remedial in nature, to improve behaviour rather than punitive.
He submitted that the Respondent failed to consider alternative sanctions. It could have achieved the objective of preventing future breaches of health and safety by alternative means and a lesser sanction. The Complainant should have been given a second chance.
Mr Cullen submitted that a zero-tolerance approach to health and safety was not a carte blanch reason to dismiss.
The Law
Section 6(1) of the Acts provides: -
- "Subject to the provisions ofthis section, the dismissal ofan employee shall be deemed, for the purposes ofthis Act, to be an unfair dismissal unless, having regard to all the circumstances there were substantial grounds justifying the dismissal. "
The facts in this case are not in dispute between the parties, consequently both parties were satisfied that there was no necessity to hear witness testimony. Where there is no dispute in the facts, the dismissal of the Complainant is deemed to be an unfair dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal. The Court must also examine whether or not the process through which the decision was arrived at was fair and reasonable. The Respondent’s case is that the Complainant’s dismissal for gross misconduct was justified based on the arguments put forward as cited above.
Based on the submissions of the parties and the oral presentations made by each side the Court notes that there is no dispute that the Complainant breached the Respondent’s safety procedures when he failed to immediately report the incident which occurred and instead sought to attempt to rectify the situation himself.
It is not for the Court to put itself in the place of the employer in the within case. Rather the role of the Court is to determine whether the actions of the employer fall within the range of actions which a reasonable employer would take in the circumstances.
This approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Donaldson LJ inUnion of Construction Allied Trades and Technicians v Brane[1981] IRLR 224(Court of Appel for England and Wales) in the following terms: -
- It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances”
- “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. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even if other employers may have dismissed him”
- [T]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.
Having considered the findings of the disciplinary process in this case and taking account of the risks involved to both himself and others 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 violation as being very serious. The Court is satisfied that these actions by the Complainant could be regarded as sufficiently grave to give rise to a loss of trust and confidence in him. In circumstances where the Respondent places such priority on ensuring the health and safety of its workforce and where there were serious risks involved, it is understandable that the continuation of the Complainant’s employment relationship was impossible, therefore justifying dismissal.
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 ..... "
The Tribunal held against a claim of unfair dismissal inAndrew Byrne v Wicklow County Council,UD656/2008, where it held that there could be no compromise in relation to the important matter of health, safety and welfare at work: -
- "... the claimant's work record and the good service is acknowledged. However, it is the considered conclusion of the Tribunal that the investigation process was reasonably satisfactory and that there can be no compromise in relation to the important matter of health, safety and welfare at work."
The Court notes that it was clear to all that the incident on 12thMay 2017 was not caused deliberately by the Complainant, however, the Respondent considered the events which followed displayed a blatant disregard for all health and safety regulations. It was for that reason it decided to dismiss the Complainant. The Court concurs with the Adjudication Officer’s finding that the loss of trust in the Complainant was justified and therefore the decision to dismiss was reasonable in the circumstances.
However, while the Court accepts that the Complainant’s action could be regarded as sufficiently serious as to warrant dismissal, it finds that it did not amount to gross misconduct. Gross misconduct generally presupposes intention and deliberate misconduct,Devlin v Player Wills (Ireland) LimitedUD 90/1978.In such circumstances the Court has considered the claim and the Respondent’s appeal of the Adjudication Officer’s Decision under the Minimum Notice and Terms of Employment Act, 1973 in a separate decision under that Act.
Determination
In all the circumstances, and having regard to the foregoing, the Court finds that the Respondent had reasonable grounds to dismiss the Complainant.Therefore, the Complainant’s appeal fails, and the Adjudication Officer’s Decision is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
20 December 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.