ADJ-00003933

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003933

Parties:

Complaint(s):

Date of Adjudication Hearing: 03/11/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant, a Lithuanian national, was employed as a general operative and forklift driver with the Respondent. He was employed from 4th July 2014 until 28th February 2016 where he was dismissed for gross misconduct. The Complainant's gross pay was €362.69 where he worked a 40-hour week. The Complainant has alleged he was unfairly dismissed in that the sanction imposed to dismiss him following a disciplinary procedure was disproportionate.

Summary of Respondent’s Case:

The Respondent denied that it had dismissed the Complainant unfairly. The Respondent submitted that the Complainant was dismissed following an investigation into serious allegations with regard to failing to use correct health and safety procedures when operating a forklift; wilfully misusing company property; putting himself and colleagues at risk; and running in an area which is in breach of health and safety procedures.

The Respondent advised that the Complainant’s contract of employment stated he had a legal duty to observe the provisions detailed under the Health and Safety Work Act 2005 and any regulations made thereunder, and take reasonable care for his own health and safety as well as that of other persons who may be affected by his acts or omissions at work. The Respondent advised that the contract of employment also maintains that the organisation’s health and safety policy must be observed at all times. In addition to this the Respondent maintained the Complainant had received and signed a copy of its Handbook and he would also have been provided with extensive forklift training and health and safety induction training; and in addition, approximately a month prior to the incident the Complainant would have received further forklift training. The Respondent also submitted that all such information is also provided to the Complainant both in English and in Lithuanian.

The Respondent submitted that on or about 7th January 2016 the Complainant and a co-worker were alleged to have engaged in unsafe and unapproved activities in the intake area of the Respondent’s premises. An employee who was engaged in cleaning duties reported that she had observed an employee driving a forklift truck at fast pace, and rotating it in a dangerous manner. She felt what she witnessed was dangerous and reported the matter to the health and safety manager. CCTV footage of the relevant area was reviewed which recorded the driving behaviour of the Complainant, and where the Complainant allowed a fellow unqualified employee drive the forklift whilst he was standing on the lift forks throwing ice, and also where the Complainant with a colleague was throwing ice and running after each other in an unsafe manner. The footage was provided to the Complainant prior to any disciplinary action, and was also shown at the adjudication hearing within.

The Respondent maintained that the Complainant was met by the HR administrator on 11th January 2016 where he was informed that whilst the allegations were not being investigated at this stage, she was making the Complainant aware of them and giving him the opportunity to respond. Having considered the CCTV footage and the discussions with the Complainant, the HR administrator decided that the appropriate course of action was to suspend the Complainant on full pay pending a disciplinary investigation. On 12th January 2016, a letter of suspension was forwarded to the Complainant and where he was advised of the procedures that were to be followed.

On 18th January 2016, the Respondent invoked its disciplinary procedures and advised the Complainant that a disciplinary investigation was to be conducted in relation to the allegations. The procedures to be adopted were detailed in this letter and where the letter to the Complainant also included the allegations clearly spelt out, the purpose of the investigation meeting, the opportunity for the Complainant to provide any evidence, the right to be represented, the right to call witnesses, and that the outcome of the process could lead to disciplinary hearing and findings. The letter also included a copy of the employee Handbook which outlined the disciplinary procedures.

The Respondent maintained it conducted the investigation in a fair manner and on the 11th February 2016, having considered all elements including witness statements, CCTV footage, and the Complainant’s response, it decided to progress matters to a disciplinary hearing. The Complainant was advised of this, and the date of the hearing.

The Production Manager conducted the disciplinary hearing on the 17th February 2016. The Complainant was advised by the Respondent that having heard the evidence, carefully considered all aspects of the incidents, and taking into account the seriousness of the allegations that had been upheld, that the Complainant’s behaviour amounted to significant breach of the company rules on health and safety procedures. As a consequence, they had no other option but to terminate the Complainant’s employment with effect from the 22nd February 2016. The allegations that were upheld included evidence from an employee that reported she had concerns for her own safety as result of the Complainant’s dangerous actions; and where the Complainant had admitted to all of the allegations which included operating the forklift in a dangerous manner, driving it quickly, driving it in donut shapes and at speed, standing on its forks while being hoisted, allowing a non-certified forklift driver drive a forklift truck, throwing ice in the plant, and running and chasing a fellow employee. The letter of dismissal also informed the Complainant that two separate occasions during the disciplinary hearing he and a fellow colleague were laughing, and accordingly the Operations Manager did not feel that the Complainant appreciated the serious nature of his actions. The Complainant was advised of his right of appeal, and on 26 February 2016 appealed the decision of dismissal.

An appeal hearing took place on the 4th March 2016 which was conducted by the Site Manager. The Respondent maintained that at the appeal hearing it considered the appeal issues raised by the Complainant, which included that the employee who reported the allegation was exaggerating to say that his actions have caused her danger. In that regard, the Complainant maintained his manoeuvres were a bit dangerous to him but not for his colleagues, and as such he was asking that the Site Manager reconsider the Respondent’s decision to dismiss as he was suitable for the job and was prepared to take any test needed to substantiate this.

The Respondent maintained that during the appeal hearing it also considered the evidence provided by the member of staff who first made the allegations and in so doing it did not view her concerns to be exaggerated or taken out of context. In his evidence at the hearing within the Appeal Manager advised that having reviewed the evidence of the incidents, including the CCTV footage; and the fact that the Complainant had agreed, accepted, and understood the allegations but did not acknowledge that his behaviour had put others at risk, decided to uphold the dismissal. The Respondent provided notes of the appeal of meeting with the Complainant where the issues raised by the Complainant in his appeal were discussed, and were subsequently addressed in the decision of the appeals manager.

The Respondent advised that it had considered alternatives to dismissal particularly in light of the fact that prior to the incidents it had seen potential in the Complainant, and had trained him as a forklift operator as part of his career progression. However, having considered the seriousness of his driving and behaviour, and the fact that he maintained that he was not a danger to others, it had no option but to dismiss the Complainant. It viewed his behaviour to be extremely unsafe, a danger to himself and others, and where there were serious breaches of its own forklift operating procedures and health and safety standards. The Respondent advised that it regretted having to make the decision but maintained it was proportionate and reasonable under the circumstances.

Summary of Complainant’s Case:

The Complainant maintained that following a complaint made about his driving he was subject to a disciplinary investigation, a disciplinary hearing, and a sanction to dismiss him.   He appealed the sanction to overturn the dismissal maintaining that the seriousness of the sanction to dismiss him was not fairly considered by the Respondent.

The Complainant acknowledged that he did not operate the forklift truck in a safe manner on the day in question, however he did not accept that he had put others at risk as alleged. The Complainant argued that the evidence provided by a member of staff who reported his behaviour had been exaggerated at the investigation and disciplinary hearings. He further maintained that having being told he was to be dismissed that the decision was disproportionate in light of his unblemished career to date, that he was being dismissed for something that could have happened rather than what did happen (i.e. that nobody was injured or hurt), that the Respondent failed to consider issues submitted in his mitigation as presented at the appeal hearing, and where he was not afforded the opportunity to challenge issues that were relied upon in deciding to dismiss him. In particular he contended that it was noted in the meeting record that he was laughing during the disciplinary procedure but he was never confronted about this at any stage.

The Complainant maintained that the Respondent had adhered to what could be described as a textbook operation of its disciplinary procedures, but in so doing it stuck rigidly to those procedures rather than to apply them fairly. He made this argument in particular in relation to the gravity of the outcome, in that it led to his dismissal and where it was argued a lower sanction should have been provided.

The Complainant further maintained that the appeal hearing had its mind made before it considered his appeal particularly in light of not addressing the mitigating circumstances that the Complainant had based his appeal on. The Complainant further maintained that as due consideration was not given to his response as he had acknowledged his own wrongdoing at the initial hearing. He did not have confidence that the appeal hearing would address these matters as they had been ignored up to then; and as he felt they had not been fairly heard prior to an appeal that the appeal could not clear up for an unfair hearing that had occurred at an earlier stage.

In general, the Complainant advised that he had acknowledged he had done wrong. However, the decision to dismiss him, particularly where he had been disciplined for what could have happened rather than for what did, amounted to a disproportionate sanction which rendered the dismissal unfair.

Findings and Conclusions:

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

Having considered the evidence presented I am satisfied that the conduct of the Complainant warranted the disciplinary procedures, and would be considered to amount to major breaches of health and safety, and could have put the Complainant or others at risk of a serious injury.

I am satisfied that the Complainant was afforded a very fair and transparent disciplinary process which included in the first stage an investigation of the allegations and where the Complainant was provided with every opportunity to respond to the information provided. The Complainant was then invited to attend a disciplinary process which afforded him the right to be heard, and where the Respondent adhered to its disciplinary procedures in a correct manner. I find that the Complainant was afforded the opportunities to respond to all aspects of the allegations and where these hearings appear to have been conducted professionally, and to a reasonable standard.

The adjudication hearing within was invited to review the substantive evidence relating to the basis of dismissal i.e. the driving behaviour and associated conduct of the Complainant at the time of the incidents. The Complainant was happy for the adjudication to review this evidence. I find, based on the evidence provided that the driving and behaviour of the Complainant appeared unsafe and dangerous, and appeared to have potential to put himself and others at risk. Based on the Complainant allowing an uncertified driver to drive the forklift whilst the Complainant was standing on the fork lift blades and being hoisted, it is reasonable to conclude such actions were contrary to both the forklift operator’s instructions and to the Respondents required safety practices. In short, this evidence was clear, obvious, and compelling.

Whilst it’s not the role of the Adjudicator to reinvestigate matters, the review of the substantive evidence is relevant in this case as the Complainant maintains that the decision to dismiss him was disproportionate, and as such his dismissal was unfair.

I am satisfied that the initial investigation was thorough, and where the Complainant did not disagree with the nature of the complaints against him, other than to submit he felt they were exaggerated and where he maintained that he did not place anybody else at risk. I am satisfied that upon appeal, the Appeal Manager considered these matters, where the notes indicate they were discussed at the appeal hearing and were not ignored or disregarded as implied by the Complainant.

I find the Respondent adhered to its disciplinary procedures and considered all issues presented to it in the course of its investigation. Whilst acknowledging that the Complainant was not asked for mitigating circumstances prior to a decision to dismiss, it is clear in the course of the investigation and the disciplinary hearing he was provided with an opportunity to make any comments which ought to be considered by both the investigator, and the disciplinary manager prior to making their findings.

I also find that the appeal which stated that the original complaints were exaggerated were brought to the attention of the Appeals Manager, and that the records would indicate that these matters were not ignored as alleged. I find that based on the evidence they were carefully considered by the Appeals Manager, and where the decision to uphold the dismissal was made, but with some regret.

I am satisfied that the Appeals Manager conducted the appeal with an open mind, but the significant point in relation to the appeal decision was not the acknowledgement that the alleged issues had happened, but that the Complainant at no stage appeared to acknowledge the significance of his behaviour or that others were put at risk, and it was this genuine concern that ultimately led to the Appeals Manager to uphold the disciplinary outcome.

On that basis, I do not find the disciplinary procedures or the conduct of the employer was flawed. I find under all the circumstances that the decision to dismiss was fair and reasonable. I agree with the Complainant’s summation that it was a text book process which was conducted fairly and with diligence, and is to be commended in that regard.

Decision:

For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977, I find this complaint not to be well-founded and conclude that the Complainant was fairly dismissed by the Respondent, and where there was no act or omission on behalf of the Respondent that would amount to an unfair process, or that the decision to dismiss was disproportionate.

As the basis of the dismissal resulted wholly from the conduct of the employee I find there are substantial grounds for justifying the dismissal, and where the Respondent regretted having to make this decision. The Complaint therefore fails.

Dated:   31/01/18

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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