UDD1814

Background

The Complainant commenced employment as a general operative with the Respondent in 2004. His employment ceased on 30^thSeptember 2016. The fact of dismissal is not in dispute. The Respondent’s position is that the Complainant was dismissed for Gross Misconduct which consisted of failing to isolate equipment while working on it, failure to carry out a risk assessment and sleeping while at work.

Complainant’s case

The Complainant first became aware of the issues on the 24^thAugust 2015 when he was suspended on full pay pending an investigation. The Complainant disputes the allegations made him against him particularly that he breached the Companies Health and Safety procedure. It is the Complainant’s position that he was not afforded fair procedure in the process that was followed. In particular, the Assistant Production Manager was not independent in relation to the first incident and should not have been involved in the investigation as he had already decided on the issue when he made the complaint. The principles of natural Justice as set out by the High Court inSamuel J Frizelle v New Ross Credit Union[1997] IEHC 137 were not followed, no consideration was given to a lesser sanction and the Complainant was not given the opportunity to question the parties making the complaints against him. In his evidence to the Court the Complainant stated that he was very conscious of Health and Safety in the workplace. In the twelve years, he had worked for the company he had never had an issue raised with him in relation to a breach of Health and Safety. He disputed both the allegations against him and does not believe he got a fair hearing.

Respondent’s case

On Friday, the 12^thAugust 2016 the Complainant was observed working on a chute that not been isolated and no risk assessment had been carried out. On the 15^thAugust, it was alleged that he was found asleep in a loading shovel in a shed. The Employer decided on the 24^thAugust to suspend him on full pay pending an investigation of the incidents. No explanation was given as to why there was a delay of 12 days from the first incidence to the date of suspension. The investigation was carried out by the Assistant Production Manager who happened to be the person who had observed the first incident. He was assisted by the HR manager in the process and the HR manager took his statement. A statement was also taken from the person who observed him sleeping in the loading shovel. The Complainant was interviewed in the presence of his Trade Union as part of the investigation process.

The investigation report was issued on the 14^thSeptember 2016 and contained two separate charges. The HR manager in his evidence to the Court confirmed that he had assisted with the investigation report and had taken the witness statement of the Assistant Production Manager who was carrying out the investigation.

The Process Manager held a disciplinary hearing on the 26^thSeptember 2016 and upheld both the charges. In his evidence to the Court the Process manager who was the decision maker in relation to the decision to dismiss stated that he did not feel it was inappropriate for the Assistant Production Manager who was the Complainant’s line manager to carry out the investigation. He was aware that the Assistant Production Manager was the person who had observed the first incidence but at the time he did not believe that should prevent him from carrying out the investigation. He believes that the procedure followed by the company while it may have a few faults was fair. The Process Manager in his evidence to the Court stated that he came to the conclusion that it was gross misconduct based on the information he was told. He and the Company took Health and Safety issues very seriously and the fact that the Complainant had failed to follow standard Health and Safety procedures was a serious issue. In response to a question from the Court he stated that dismissal was the only option anything less would mean workers would not take Health and Safety issues seriously.

The Complainant appealed the decision and the overall Plant Manager heard the appeal on the 14^thOctober. He upheld the decision to dismiss. In the course of the Labour Court hearing it came to light that the Plant manager had been involved in the original decision to suspend the Complainant.

Applicable Law

Section 1 of the Act defines dismissal in the following manner

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)……

Section 6(1) states

Issue for the Court

Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

The Complainant’s case is that his dismissal was unfair as the process that led to the decision to dismiss him does not meet the standard for fair procedure set out in case law. He was not given a written complaint nor was he given access to witnesses. The investigation process was flawed as the person carrying out the investigation was also the person making one of the complaints. The Complainant does not dispute that there was an issue in relation to a machine on the 12^thAugust 2016 but does not accept that what he was doing was a breach of the Company’s Health and Safety policy. In relation to the second allegation he disputes the fact he was asleep while at work. Even if the allegation were true this was not a substantial ground to justify dismissal as the appropriate sanction bearing in mind his unblemished record of twelve years.

The Respondent does not dispute the fact that there were flaws in the process. The representative for the Respondent informed the Court that they accepted they had not complied with the principles of natural justice set out inSamuel J Frizelle v New Ross Credit Union[1997] IEHC 137. The Respondent felt due process had been followed and that the conduct complained off was gross misconduct which met the requirement of being a substantial ground thereby justifying his dismissal.

The Court is satisfied from the submissions and the oral submissions made on the day that the Complainant did not follow the Health and Safety Policy of the Respondent. However, the Court is not satisfied that failure to do so reaches the bar for gross misconduct or meets the requirement in the circumstances of this case of being a “substantial ground”. In relation to the process followed the Court has concerns that issues were taken into account that in a procedural context were not related to the investigation of the incidents in particular the statement in evidence from the Process Manager that no other sanction could be considered Taking into account all the above the Court cannot see how this dismissal could be deemed to be fair.

Remedy

Section 7 of the Act states

• 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
  (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
  (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
  (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
  (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

Having assessed all the information before it including the conduct of the Complainant the Court considers that the Complainant has suffered financial loss as a result of the wrong he has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €13,500. The Court so determines.

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €13,500. The decision of the Adjudication Officer is set aside. The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
23 February 2018______________________
JDDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.