ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005449

Parties:

Complaint:

Date of Adjudication Hearing: 21st March 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 80 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977 and 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 was employed by the Respondent from 16th July 2012 to 8th April 2016 and based on his P60 for his last full year worked (2015) his weekly rate of pay was €839.89c.

The Complainant was submitting that he had been unfairly dismissed by the Respondent and the Respondent was denying the complaint.

It should be noted that the Complainant’s colleague’s case was heard at the same time as his as both cases were closely related, being with the same employer and dismissed for similar reasons and the same alleged actions, accordingly there may be plural references in this document.

Brief Summary of Respondent’s Case:

The Respondent was denying that the Complainant was unfairly dismissed and they were submitting that he was dismissed by reason of gross misconduct and thus the dismissal was not unfair in accordance with the provisions of the Unfair Dismissals Acts.

The Respondent said they install and service Wind Energy Converters across Northern Europe.

The Respondent said the Complainant commenced employment with them on 1st May 2006 and he was employed as a Field Services Technician.

The Respondent said their Service Department consists of mechanical and electrical field service technicians who work on the service, maintenance and repair of wind turbines.   They said service teams are responsible for electrical, electronic and mechanical equipment and for completing all computerised documentation.   They said that service teams consist of 2/3 technicians working   from service stations spread geographically throughout the Country.

The Respondent said that during the Complainant’s induction the Company’s Disciplinary Procedure was clearly outlined to him and he was advised that all of the Company’s policies could be accessed on the ISI database.   (Copy of Disciplinary Procedures submitted to the Hearing).   The Respondent said that in addition the Complainant continued to receive training throughout his employment.

The Respondent said that on 22nd February 2016, the Complainant and his named colleague travelled from a named location to one some considerable distance away to perform generator repair works at a named Windfarm on a named generator, T12.

The Respondent said that from 22nd to 26th February 2016, the Complainant and his named colleague carried out a generator coil repair on T12.   They said that this included test generator works, the removal of pole shoes, work on the brake unit, the removal of a coil at the 14.30 position and the cleaning of slots.   The Respondent said that there were none of their staff scheduled to work on T12 from 26th to 29th February 2016.

The Respondent said that between 26th February to 1st March 2016, three rotor locking pins, which keep the rotor In position when a generator repair is in progress, retracted, allowing the generator rotor disc to rotate, resulting in significant damage to the stator, as tools left on the rotor disc by the Complainant and his colleague, became trapped between the pole shoes and stator laminations.

The Respondent said that on 1st March 2016, the Complainant along with another two colleagues recommenced work on T12. The Respondent said the Complainant climbed the turbine first on that day, as the rotor was turning, to assess the damage.   The Respondent said that Complainant then telephoned the Office and spoke with a named Indoor Technical Support Person who asked him to send in pictures of the damage.  

The Respondent said that in that telephone call the Complainant informed them of the damage; they said that in doing so he purposely and knowingly misled them as to the cause of the damage.   He informed then had been caused by “leaking pipes” when in fact they were caused arising out of the manner in which the Complainant and his colleague performed the repair work.   The Respondent said that it was established, during the investigation, that the rotor moved because of an open circuit, that was the result of human actions, not a mechanical or electrical failure in the hydraulic system.   They said that in this case the rotor pump system was removed from the circuit and was not replaced or reattached.  

The Respondent said on 2nd March, the Complainant along with two other named employees climbed the turbine to assess the damage to the rotor and sub distribution box.   After this they ordered materials from the stores.   The Respondent said that the entry on the daily progress report that is filled in each day of a generator repair stated: “Rotor pins retracted Team had previously removed the stator sub box from its position.   Relocking the rotor lock pins.”

The Respondent said that from 2nd to 6th March 2016, no further work took place on T12.

The Respondent said that on 7th March 2016 the Complainant and his colleague detailed the damage from the rotor lock pins slipping out as detailed on the ‘Service Daily Report’ log

The Respondent said that on 8th March 2016, the Complainant and his other colleague detailed the damage to the stator laminators and submitted a generator report by email to two named Indoor Technical Support Staff specialising in in generators.   They said the email in this Report identifies the reason the rotor moved was due to loose connections on the brake unit.

The Respondent said that on 9th and 10th March 2016, the Complainant and his colleagues continued performing a coil bypass and submitted a hazardous situation report stating that the hydraulic brake pipes were left loose … causing the rotor to turn.  

The Respondent said that on the evening of 11th March 2016, that the Complainant travelled back to his home area, his colleague involved in this dismissal and another named colleague, from 14th to 16th March 2016, completed the work on T12 as detailed in the service Daily Report

The Respondent said that from 14th to 24th March 2016, they investigated the incident and they issued a Report on it.

The Respondent said that from 14th to 24th March 2016, they investigated the matter.   As part of the Investigation the Complainant, his colleague who was also dismissed and another named employee were interviewed as follows:

• The Complainant’s colleague who was also dismissed was interviewed on 24th March 2016
•  
• The Complainant was interviewed on 14th March 2016
•  
• A named colleague (C) was interviewed on 14th March 2016.

The Respondent said that during his interview, the Complainant confirmed that the brake unit was removed, and the pipes were also taken off.   He also confirmed that he did not make contact with the Indoor Technical Support Team to verify his actions before removing the brake unit.

The Respondent said that the Investigation concluded that the “rotor moved as result of an open circuit which was a result of human actions and not a mechanical or electrical failure in the hydraulic system.”   The Respondent said that in this case the rotor lock pump system was removed from the circuit and was not replaced or reattached.   It was determined that the Complainant and his colleague who was also dismissed failed to clarify their action with Technical Support prior to removing the rotor lock pump and it was further noted that “delays in reporting why the damage occurred worsened the situation”.

The Respondent said that by letter of 1st April 2016, the Complainant was requested to attend a Disciplinary Hearing on 7th April 2016 and a copy of the Company Disciplinary Policy was enclosed with the letter and the Complainant was informed of his right to representation and of the fact that disciplinary action in line with the Company Disciplinary Policy could occur.

The Respondent said that during the Hearing the Complainant admitted that the details submitted to the two named staff on 8th March 2016 and the details submitted on the Hazardous Situation Report on 29th February were not true.

The Respondent said that on 8th April 2016, the Complainant attended a Disciplinary Outcome Meeting.   The Respondent said that following full consideration of the evidence, the submissions of the Complainant, all disciplinary sanctions up to and including dismissal it was determined that owing to the seriousness of the incident, the potential loss of life as a result of his negligence and the fact that the relationship had broken down as the Respondent believed they could not trust the Complainant to carry out his work in a safe manner amounted to gross misconduct and therefore the Complainant was summarily dismissed in line with the Company Disciplinary Procedure.  

The Complainant was informed that he would be paid in lieu of notice and he was informed of his right to appeal the decision.

On 11th April 2-016 a letter of dismissal was sent to the Complainant, signed by the HR Generalist.

The Respondent said that on 12th April 2016, the named Managing Director received a letter from the Complainant setting out his appeal.

On 15th April 2016, the Respondent wrote to the Complainant confirming that the outcome of the appeal was that the decision to dismiss him was upheld.

The Respondent said the Complainant was not unfairly dismissed, but rather was dismissed wholly and mainly by reason of his misconduct and that thus by virtue of Section 6(4)(b) of the 1977 Act his dismissal was not unfair.

The Respondent said the seriousness and the potential risk of the Complainant’s actions cannot be underestimated.   The Complainant was found, and he admitted to misleading them, as to the cause of the damage at T12.   The Complainant informed the Respondent that the damage had been caused by “leaking pipes”, when in fact the damage had been caused arising out of the manner in which the Complainant and his colleague undertook the repair work.

The Respondent said that such a serious incident was in clear contravention of health and safety law and Company Procedures.   They said the Company Disciplinary Procedure specifically cites; “wilfully endangering the lives of any person on …. property by contravening the Health and Safety Policy” as an example of gross misconduct, for which the consequences is summary dismissal.   They said the facts as outlined above demonstrated that the Complainant’s actions meet this.

The Respondent said the Employment Appeals Tribunal (EAT) in Byrne -v- Wicklow County Council [UD 656/2008] states: “There can be no compromise in relation to the important matter of health, safety and welfare at work.” The Respondent said that just as summary dismissal for a serious health and safety breach in that instance was not unfair, so too is dismissal in the instant case.

The Respondent quoted from Section 13(1) of the Safety, Health and Welfare at Work Act 2005, which sets out the duties for employees regarding health and safety in support of their position.

The Complainant said that during the Investigation Meeting on 7th April 2016, the Complainant admitted that he understood that his actions would have seriously endangered his and others health and safety and they said that if he or any of his colleagues had been “working on the spinner at the of the released.  They said it was further stated that if this had occurred a loss of life was highly likely.

The Respondent said that not only have they these legal obligations to protect employees but also has a moral duty to ensure this.   The Respondent said that to not dismiss the Complainant for such a serious disregard for health and safety procedures, would have been to send a message to employees that they did not take these obligations seriously.   The Respondent said that their sincere commitment to health, safety and welfare at work would have been diminished and called into question should they have allowed their policies to be disregarded without consequence.

The Respondent said that their employees work independently and without direct daily supervision as they travel to individual locations and therefore they place a significant degree of trust and responsibility in field employees.   They said that this trust is imperative.   They Respondent said that they need to be in a position where they are confident that their employees are adhering to procedures, particularly procedures as important as those which protect the health and safety of employees, customers and third parties.   The Respondent said they could no longer have trust and confidence in the Complainant after such a serious breach had occurred.  

They said it is well-established principle of employment law that trust and confidence is essential to the employment relationship where that is broken the relationship justifiably terminates.

The Respondent quoted from the case of Moore -v- Knox Hotel and Resort [UD 27/2004] in support of this position.

The Respondent said the dismissal of the Complainant was procedurally and substantively fair.   The Respondent said that they adhered to fair procedures and respected the rights of natural justice of the Complainant at all times prior to the dismissal.   The Respondent said that drawing on S.I. 146 of 2000, such rights clearly have been upheld, i.e.:

1. The Complainant was made fully aware of the allegations against him and he was aware at all times of the seriousness of the position.
2.  
3. The Complainant was provided with an opportunity to respond fully to all allegations against him.   The Complainant was met with and questioned as part of the Investigation Process, and a Disciplinary Meeting was held where the Complainant was provided with a full and fair opportunity to present his case and influence the decision.
4.  
5. The Complainant was afforded the opportunity to avail of the right of representation.
6.  
7. The Complainant was afforded a fair and impartial determination of the issues.   All relevant information and evidence pertaining to the matter was taken into consideration.
8.  
9. The Complainant was advised of and availed of his right to appeal.

The Respondent said in relation to point (e) above, that after the Appeal was dealt with and the Managing Director (MD) issued his decision rejecting the appeal and upholding the dismissal decision, they realised that the Appeal Process had not afforded the Complainant an opportunity to ‘be heard’ in his own appeal (i.e the MD had not met with him and based his decision on the appeal letter and the documentation available to him).   The Respondent said that they realised that this could be seen to be unfair to the Complainant so following some consideration they, on 27th April 2016, wrote to the Complainant stating that upon review they have decided to re-open the appeal process to him and inviting him to attend at an appeal hearing on a specific date.   The Complainant did not take up the offer.   In response to questions the Respondent said that it was intended that the re-opened appeal would be heard by another named manager (not the MD or the HR Generalist who were already involved in the dismissal), who obviously would be junior to the MD.

The Respondent said that based on the foregoing it is their position that the Complainant’s dismissal was not unfair, he was dismissed by virtue of his own conduct, which amounted to gross misconduct and warranted summary dismissal and the Respondent sought findings and a decision to that effect.

In response to questions the HR Generalist confirmed that the Report for the investigation was prepared by a named Field Area Manager and another named Manager.   He and this Field Area Manager conducted the Investigation and the Investigative Hearing.   He also confirmed that he made the decision to dismiss the Complainant despite the fact that the Disciplinary Procedures provide that a decision to dismiss may only be taken by the Managing Director.

Brief Summary of Complainant’s Case:

The Complainant submitted that he had been unfairly dismissed by the Respondent in breach of his rights and entitlements under the Act.   The Complainant said that he was employed in a permanent capacity as a Field Service Technician under a written contract of employment dated 16th July 2012.   The Complainant said that no major issues arose in relation to his employment and that he was an exemplary employee until an incident occurred between 22nd and 26th February 2016 that resulted in the Respondent summarily dismissing him on 8th April 2016.

The Complainant said on 22nd February 2016, he and his named team mate who was also dismissed (known as Team 24) were sent to a named location to carry out repairs to a generator known as T12. Between 22nd and 26th February they tested the generator, removed poleshoes, removed brake unit, removed coil and cleaned slots.   On 24th February 2016, the Complainant emailed Technical Support in Ireland and the named Field Area Manager stating that they had removed the Brake Unit.   He said neither Technical Support or the Field Area Manager replied to advise them that such an action was incorrect or contrary to Health and Safety Procedures.

The Complainant said that the Technical Instruction Manual issued to him and his team mate was silent as to the removal of brake unit or the locking of transport bolts.   The Complainant and his team mate continued to carry out repairs until 26th February 2016.

On Wednesday 2nd March 2016, the Complainant and two different employees, one of whom had been employed by the Respondent for 10 years, returned to T12.   The Complainant noticed that the rotor was turning on the generator and on inspection he noticed that the pins had retracted and damage had been caused to the generator.   He said that this came as a complete shock to him as he and his team mate had to take the brake unit off during the earlier repair so that they could carry out necessary repairs and were not aware that the pins would retract, thereby unknowingly and unwittingly causing damage to the generator.   The Complainant said he panicked when he saw the that the generator had been damaged and he said that he was advised by his fellow employee to inform the Office that the pipes had leaked.   He said that in a state of panic he agreed to inform the Office that the damage to the generator had been caused by leaking pipes, rather than the fact that the brake unit had been taken off, which was the actual reason for the damage.

The Complainant said over the night of 2nd March 2016 he started to suffer panic and anxiety attacks as result of the incident.   He said that he contacted the Respondent at 7.00am the following day to inform them he would not be able to attend work and he attended his doctor for treatment for his panic and anxiety and he remained off work until 7th March.   The Complainant said that on 7th March he and another employee returned to T12 to inspect the turbine.   He said that on 9th March they submitted a Hazardous Situation Report stating that the damage had been caused by leaking pipes.

The Complainant said that he was obliged to take sick leave from 11th March as a result of his ongoing panic and anxiety arising from the incident.   He said that as he had difficulty dealing with stressful situations his GP assisted him in dealing with such situations

The Complainant said that on 14th March 2016, two named Field Area Managers arrived at T12, where he and another employee were completing the repairs.   The Complainant said that he immediately clarified the position and told the truth as to the real cause of the damage, that the brake unit had been removed.   The Complainant said that while on still on sick leave he contacted the named HR Generalist and told him that he wished to meet about the incident.   A meeting was arranged for 24th March 2016 with two named managers.  

The Complainant said that at this Meeting he immediately informed the two managers of the truth regarding the incident and he said that this was not recorded in the Report into the incident compiled by the two managers.

The Complainant said that on 1st April 2016, he received an email from the named HR Generalist, requesting that he attend a Disciplinary Meeting on 7th April 2016.   He said that this email stated: “At the disciplinary meeting the question of disciplinary action against you will be considered in regard to the incident that occurred during generator repairs at WEC …. 701979 during the period 26.02.16 to 1.03.16.   It is important to make you aware a possible consequence arising from this meeting is a sanction in line with the Company’s Disciplinary Procedure.”

The Complainant said that it is his submission that his summary dismissal was disproportionate in the circumstances, that the disciplinary and appeal procedures used by the Respondent were inherently lacking in fair procedures and were contrary to natural justice, that the Respondent’s decision to summarily dismiss was predetermined, the disciplinary hearing and appeal was no more than a lip service attempt to follow procedures.   The Respondent did not give any consideration to a lesser sanction in line with the disciplinary policy and they failed to have any regard to the fact that the Complainant had not received sufficient or received inadequate training in specialist Generator Repair such as would be required to carry out the repairs.

The Complainant said the Disciplinary Policy states under ‘General Principles’ that “at every stage of the procedure an employee will be advised of the nature of the complaint, provided with all relevant information and the potential scope of the disciplinary action.”   The Complainant said the letter of 1st April 2016 from the Respondent never informed the Complainant that one of the sanctions that might be imposed would be the termination of employment, which, he said the Respondent is obliged to do if considering dismissing the employee for alleged gross misconduct, particularly, where it has had such drastic consequences for the Complainant.  

The Complainant said that as he was not aware that a potential sanction could be the termination of his employment he did not have representation with him as he would have availed of or take advice had he been made aware of the extent of the scope of the disciplinary sanction.

The Complainant was dismissed for alleged gross misconduct namely potential loss of life as a result of the incident and a breakdown of trust between the employer and the employee.   He said that the Disciplinary Policy states one of the grounds of gross misconduct is where an employee “wilfully endangers the lives of any persons on … premises by contravening the Health and Safety Policy.” The Complainant said there was no evidence, either during the course of the Investigatory Meeting or during the Disciplinary Hearing that the Complainant and his team mate had deliberately and wilfully caused damage to the generator and the letter of dismissal of 14th April does not specify the grounds of dismissal, nor does it state that the decision to dismiss was as a result of the Complainant and his team mate wilfully causing damage to the generator during the course of repairs.   In fact the Complainant had emailed the Technical Office on 24th February 2016 - Day 3 of the Service Progress Report informing the Technical Office in Ireland and a named Field Area Manager (one of the persons who carried out the Investigation) that they had removed the brake unit during the course of repairs.   They received no reply that this was not the correct course of action to take, nor were they informed as to the possibility of the locking pins releasing and therefore the Complainant and his team mate at all times believed that they were correctly carrying out the repairs until the damage was discovered.  

The Complainant said that the decision to summarily dismiss him was entirely unreasonable and disproportionate in the circumstances and the Respondent failed to give consideration to any other or appropriate sanction in line with their Disciplinary Policy.   The Complainant submitted that the genuine mistake was made in carrying out the repairs would be more appropriately described as a “poor performance” or a “misconduct issue.”   It was submitted that a warning would have been more appropriate in circumstances where the Respondent’s Disciplinary Policy specifically provides that where performance or conduct falls short, warnings will specify the standards required and state what is required to resolve the situation and the likely consequences if those standards are not met.   The Complainant said that in this regard, the Respondent failed to have regard to the recommendations in the Report into the Incident, specifying what action should be taken in the future and it was submitted that warning the Complainant and his team mate in the terms of the recommendations in the Report would have been the appropriate course of action, as the Complainant’s actions do not match the high threshold of gross misconduct.  

The Complainant said that in addition the Respondent did not have regard to his loyal service and that this had been an incident in which he acted totally out of character.   He said the Respondent failed to acknowledge or take into account that at the first opportunity he had been honest and frank about what had actually happened at the meeting on 14th April 2016.   The Complainant said the Respondent failed to take into account that not only had he instigated the Meeting of the 24th March but had also been honest and frank about what had caused the damage to the generator.   The Complainant said that moreover the Respondent failed to have regard to their own obligations as an employer as they had failed to respond to the email of 24th February, failed to advise what appropriate action should be taken and failed to provide any information in the Technical Services Instruction Booklet as to the removal of a brake unit and the locking of transport bolts.  

The Complainant said the Respondent also failed to take into account that the rotor lock system at T12 was different to the other generators that they had worked on and ordinarily an LED light system would have alerted the Complainant and his team mate that there was a difficulty.

The Complainant said that in addition the Respondent failed to provide sufficient training in specialist generator repair such as would be necessary in carrying out repairs of this nature.   The Complainant said that his contract of employment states he was required to “undertake any reasonable duties fully within your capabilities.”   The Complainant said that in this regard to this that he and his team mate had only been provided with two weeks theoretical training in Germany two years previously that should be then followed by being accompanied by an experienced specialist technician for a period of 12 months.   He said that this did not occur, notwithstanding the Complainant asking his Supervisor and Area Manager on two different occasions to obtain experience with a specialist technician.   He said that further he was not aware that the removal of a brake unit was not the correct procedure to have followed and this has now been updated in the Technical Service Instruction Manual.    He said that in all the circumstances, the damage to the generators had been caused by a failure to provide adequate and ongoing training in such a specialist area and the Respondent failed to have regard to both the employee and employer as whole before summarily dismissing him.  

The Complainant said that the outcome of the Disciplinary Meeting on 7th April 2016 was clearly predetermined and the Respondent was merely paying lip-service to the Disciplinary Procedure.   He said the Meeting held by the Respondent only lasted 20 minutes.

He said that the named Field Area Manager, who was one of the persons who conducted the investigation, also formed part of the disciplinary panel and therefore could not be considered to be independent, impartial and fair. He said that no statement taken from the other employees who were investigated or involved in the incident were provided to the Complainant.   He said that the named HR Generalist stated at the hearing that one of the outcomes was a sanction in line with the Company’s Disciplinary Policy.   The Complainant said that once again he was not informed that a potential sanction could be summary dismissal of him.   The Complainant said the Respondent stated that the incident could have resulted in a potential loss of life, but there was no report from Health and Safety to substantiate this, nor was any such report provided to him.   He said the Meeting of 8th April 2016, summarily dismissing him lasted 5 minutes and he was informed that he was being summarily dismissed on the basis that hypothetically there could have been a potential loss of life and that there was a breakdown of thrust between the Complainant and the Respondent.   The Complainant pointed out that he had always been a loyal employee.   The Complainant said that the Respondent sent him a formal letter of dismissal on 11th April 2016, that was received by him on 12th April 2016.   This letter stated that the reason for the dismissal had been discussed at the meeting of 7th and 8th April 2016, but the letter failed to specify the grounds for dismissal in accordance with the Respondent’s Disciplinary Policy.  

The Complainant said he was informed that he could appeal the decision within 5 days of the receipt of the letter with any such appeal to be addressed to the Managing Director. He said that he submitted an appeal on 12th April by email.

The Complainant said that the Respondent’s Disciplinary Policy states that an employee will be notified of the date of the Appeal Hearing at least two days in advance.   The Complainant was not informed of the date of the Appeal Hearing, he was not invited to attend an Appeal Hearing and was not informed of a right to representation at any such Appeal Hearing.

The Complainant said that on 15th April he received a two-line email from the Respondent stating that the Managing Director had rejected his appeal and upheld the decision to dismiss him and he said that no reason for that decision nor any statement of what processes or information was used in arriving at that decision, nor any reference made to his grounds of appeal.   The Complainant said that therefore the appeals procedure was in clear breach of fair procedures and contrary to natural justice and fair procedures.

It was submitted that it was clear that the alleged appeals procedure amounted to no more than a rubber-stamping exercise of the earlier decision to summarily dismiss the Complainant.   It was also submitted that the Respondent was fully aware that there was an abject failure to follow fair procedure in their conduct of the ‘Appeal’ as on 27th April 2016, as the Respondent wrote by email to the Complainant stating that they had decided to ‘reopen’ the appeals process and invited the Complainant to a further Appeals Hearing to be held on 9th May 2016 in the other side of the Country from where he lived.   On this occasion the Respondent now stated that the Complainant had a right to representation and was informed of his right to raise additional matters in his appeal.   He said that however the Respondent did not provide transport to the hearing as had previously provided with in advance for the Disciplinary Hearing.   The Complainant said that he had been very concerned at how the Disciplinary Hearing had been conducted and in particular the conduct of the internal appeal process that had been decided without any reference to him.   He said that he had no assurance that this highly unusual re-opening of the appeal process was no more than an attempt by the Respondent to backtrack on their obvious breach of fair procedures.   The Complainant said that he consulted with his Solicitor, who on the Complainant’s authority, wrote to Respondent by both letter and email of 28th April 2016, seeking clarification as to the nature of the re-opening of the appeals process and suggested that any proposed meeting should take place in the town where the Complainant primarily worked and in circumstances where he had been unemployed for 3 weeks and had no source of income to travel.   The Complainant said the Respondent failed to provide any clarification on the issues raised to either him or his Solicitor prior to the date of the new Appeal.   The Respondent briefly replied to the Complainant’s Solicitor by email on 10th May 2016, stating that it was not their policy to correspond with third parties on internal matters.  

The Complainant said that the Respondent then emailed him on 11th May 2016, acknowledging receipt of the letter dated 28th April 2016.   This email stated that the normal mechanisms had been exhausted as the Complainant had not attended the Second Stage Appeal.   It was submitted that the Complainant was reasonably awaiting a response to the letter written on his behalf by his Solicitor and unless and until such clarification had been obtained in respect of the issues raised in the letter, the Complaint said he could not have trust and confidence in the process adopted by the Respondent, given the lack of reasonableness in their decision making process thus far and the lack of fair procedures observed by the Respondent.  

The Complainant said that he understands that his job was advertised internally prior to the date of the hearing of the second Appeal of 9th May, which he said further undermined his trust in the proposed appeal.   Following the Respondent confirming at the hearing that it was not intended to be an independent appeal (i.e. not conducted by a person or persons from outside the employment) but rather it was intended to have the appeal heard by a manager/member of staff who was junior in terms of level or status to the Managing Director, the Complainant said that such a process was clearly in breach of fair procedure as an appeal must be heard by a person of a higher level than the decision maker whose decision is being appealed and in this instance as it involved the Managing Director it could only be fair if the appeal were to be heard by an independent person from outside the employment as no one in the employment could be expected to be objective in relation matters involving the Managing Director. He said what was proposed was in clear breach of fair procedures and natural justice.

The Complainant’s Representatives asked questions of the Respondent’s Field Manager and HR Generalist who were present, in relation to technical issues, health and safety issues, training provided to the Complainant and his team mate and related matters and also in relation to procedures followed by the Respondent in this matter and in relation to both managers’ involvement in those processes and also in relation to each of their involvement in the process at each stage.

Following the Respondent making their submissions the Complainant pointed out that a document (in small print) submitted by them, a Service Daily Progress Report from the Complainant and his team mate, actually confirms the direct opposite to what the Respondent alleges. The Complainant said that contrary to what the Respondent states, this document clearly shows that the Complainant and his team mate were, at a very early stage, stating the correct and truthful reason for the damage done.

The Complainant submitted copies of and quoted from the following in support of their positions:

• A Worker and A Commercial State Body [UDD 1815]
• Vet -v- Kilsaran International Limited [UDD 1611]
• Glover -v- BLN Limited (1973) IR 388
• Robert Burke and Nurendale t/a Panda Waste
• A Security Company [ADJ-00007065}

The Complainant also quoted from Dismissal Law in Ireland in support of their position.

The Complainant submitted that based on the foregoing and the facts and circumstances of the caser that clearly he had been unfairly dismissed in breach of the provisions of the Unfair Dismissals Acts and he sought that his complaint be upheld.

The Complainant gave evidence in relation to his efforts to secure alternative employment and mitigate his losses.   He had been completely unemployed for 4 to 6 weeks and he then secured alternative employment, but at a lower rate of pay. The Complainant submitted documentary evidence in this respect.

Findings and Decision:

Section 80 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Act 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 7 of the 1977 Act.

I have carefully considered all the evidence adduced and the submissions made by both parties in this matter and I have concluded as follows.

In relation to the question of substantive issue I note the following.

I fully accept that what occurred with T12 was very serious and could have had very serious consequences indeed.  

I also accept that both it and Complainant and his team mate’s involvement in it and responsibility for it required a full investigation.   However, I do have serious concerns about how this matter was handled, both substantively and in particular procedurally.

I must consider was what occurred caused entirely caused by the actions or lack of actions or behaviour of the Complainant and his team mate.

In that respect I note the following:

• • The Instruction Manual, that was referred to by the Respondent and was significantly relied upon them in the decision to dismiss the Complainant and his team mate was silent as to the question of the removal of the brake unit or the locking of transport bolts and this fact appears to be further supported by the Recommendations of the Investigation Report.
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  • On 24th February 2016, the Complainant and his team mate emailed Technical Support In Ireland and a named Area Field Manager stating that they had removed the Brake Unit and neither replied to advise them that such an action was wrong or contrary to health and safety procedures or was unsafe.
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  • I note that the Complainant stated and it was not disputed by the Respondent, in regard to carrying out repairs of this nature that the only training that he and his team mate had been provided with was two weeks theoretical training in Germany two years previously that should be then followed by being accompanied by an experienced specialist technician for a period of 12 months and that this did not happen despite him requesting it on two separate occasions for this.
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  • I further note the submission by the Complainant, not contested by the Respondent, that ordinarily an LED light system would have alerted the Complainant and his team mates that there was a difficulty/problem and I can see no evidence this was taken into account by the Respondent in their decision to dismiss the Complainant and his team mate. 
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• I note that the Company Disciplinary Procedures states that an employee may be summarily dismissed by reason of gross misconduct where an employee: “wilfully endangers the lives of any person by contravening the Health and Safety Policy.”     However, I note that there was no suggestion whatsoever, by the Respondent or anyone else that the Complainant and his team mate’s actions were in fact “wilful”.

I have concluded the that foregoing failures on the part of the Respondent means that they must share at least some of the responsibility for what occurred.

In relation to the question of fair procedures there are even more serious failures by the Respondent and in that respect, I note the following:

• In relation to the Investigation the Complainant’s team mate informed the Respondent that a named colleague had advised him to (falsely) inform the Respondent that the incident had been caused by pipes that had leaked.The Respondent confirmed that they had in fact been so informed, but that despite the fact that this employee had been interviewed as part of the investigation this assertion was not explored in any way with him and the question of his possible involvement was not even given the most cursory consideration. This employee continued in the employment without let or hindrance. I note that this fact does tend to support the Complainant’s submission that his dismissal was predetermined. I have concluded that this failure constitutes a serious breach of fair procedures that respects the Complainant’s rights.
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• I note that the Complainant requested a meeting with the Respondent at an earlier stage in the process and voluntarily informed two managers, including one who was involved in the Investigation and Disciplinary Process of the truth of what had happened at T12.   This does not appear to be recorded in the Investigation Report or taken into account in the Disciplinary Hearing and the impression is created that he only acknowledged what happed when challenged with the facts.
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• I note the named Field Manager who along with a colleague had prepared the Report for the Investigation was also involved in the Disciplinary Procedure. The invitation by the Respondent to the Disciplinary Meeting states that it will be conducted by this named Field Manager and the HR Generalist and based on the minutes of the Disciplinary Hearing submitted by the Respondent he played a very active part in it questioning the Complainant.  This is totally inappropriate as the only involvement this Manager should have had would have been to answer any questions in relation to the Report.   Indeed, as stated by the Employment Appeals Tribunal (EAT) this is inappropriate as it would require “Olympian Impartiality” not to be expected of any person.   I have concluded that this also constitutes a breach of fair procedures that respects the Complainant’s right. 
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• I note that in the invitation by the Respondent to the Complainant to the Disciplinary Hearing the Complainant is not specifically informed that one of the sanctions that may be imposed would be his dismissal from his employment, rather it just states very generally “It is important to make you aware a possible consequence arising from this Meeting could result in a sanction in line with the Company’s Disciplinary Procedure.”   This is not in accord with fair procedure or with the Company’s own Disciplinary Procedure, which states in that respect: “at every stage of the procedure an employee will be advised of the nature of the complaint and the potential scope of the disciplinary action” (my emphasis).Clearly that was not complied with in this case and it is particularly important as it allows an employee to decide if in view of the potentially serious consequences they wish to avail of the right to be represented and/or take independent professional advice and I note the Complainant had no reason, nor was he given any reason to believe that his job was at risk.   This constitutes a serious breach of fair procedure and an equally serious breach of the Respondent’s own procedure, which they as well as the Complainant are bound by.
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• I note that despite the fact that the Respondent’s Disciplinary Procedures provides that the decision to dismiss may only be taken by the Managing Director, in this case the decision was taken by another, i.e. the HR Generalist.  I was informed by the Respondent that despite the fact that their Procedures state that the decision to dismiss may only be taken by the Managing Director they are in fact taken by the HR Generalist.   This is quite a startling statement that the Respondent do not respect or abide by their own Procedures.The Complainant is entitled to the full protection of the Company Disciplinary Procedures and just as he is obliged to abide by them so is the Respondent.   This also represents both a breach of fair procedures and as already stated of the Respondent’s own Disciplinary Procedures.   It also shows quite an alarming disregard by the Respondent for their own procedure.
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• I note that the Letter of Dismissal does not state the specific reasons for the dismissal confining itself to stating: “The reasons for your dismissal have been discussed with you during the disciplinary hearing on Thursday 7th April and on Friday 8th April, when you received the Company’s decision.”.   This is in breach of the provisions of the Respondent’s own Procedures and indeed the 1977 Act which provides that an employee in entitled to be provided with a written statement of the specific reasons for their dismissal.   Obviously it is crucially important to a Complainant, who needs this specific information in order to decide if s/he wishes to take an appeal against their dismissal and/or a case under the 1977 Act.  On receipt of this correspondence the Complainant corresponded with the Respondent seeking the reason for his dismissal as he wished to appeal that decision..   He received a response that stated that there were 4 reasons; health, breakdown of trust, the Company’s reputation and financial cost to the Company.  The Complainant responded stating that the last two of these, the Company’s reputation and the financial cost to the Company had never been raised or discussed with him in the process and thus he had no opportunity to correct or respond or defend himself against those allegation.   The Respondent then responded stating: “Your correct please discount that piece of information as I didn’t bring it up in the meeting.   Thanks for highlighting.”   This is an extraordinary response to a most serious matter, it offers no explanation whatsoever for what had been stated in the correspondence to the Complainant and it does not confirm that the two reasons advanced did not inform the Respondent’s decision to dismiss.   It should be noted that this correspondence from the Respondent was from the person who made the decision to dismiss and who accordingly was fully involved in and fully aware of the procedures used and all matters involved in the decision.   Either the Respondent was taking into account in the decision matters never put to the Complainant or they were exceptionally careless and remiss about the way they were dealing with such a serious matter.   Either way it is a very serious failing that of itself could render the dismissal unfair.
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• In relation to the ‘Appeal’ of the dismissal decision I note the following.   The Complainant submitted his appeal against the dismissal decision on 13th April 2016. The Respondent’s Disciplinary Policy provides that an employee will be notified of the date of the Appeal Hearing at least two days in advance, nor was he notified of any right to representation at the Appeal Hearing.   That was not complied with by the Respondent in this case and accordingly they were again in breach of their own policies.The Complainant was not notified of any arrangement for the Appeal at all.The Complainant was notified by email of 15th April 2016 that his appeal against dismissal was rejected and that was confirmed in a two line correspondence as follows: “After reviewing your appeal, (the named) Managing Director, has decided to uphold the decision to terminate your contract of employment as of the 8th April 2016.”   There was no reason given for this decision nor any explanation of the processes or information taken into account in arriving at this decision.   This is not in line with best practice as an employee is entitled to know on what basis a decision that affects them was made.  Of even more significance is the fact that the Complainant was not allowed to ‘be heard’ in his own case and that is in breach of fair procedures and natural justice.   Plainly the Respondent accepts that was the case as on 27th April 2016, they wrote to the Complainant stating that upon review they were going re-open the appeals process to him.   He was informed of the date, time and location (the other side of the Country from where he lives) for the ‘re-opened appeals process’, but was not informed as to who would be hearing the ‘re-opened appeal’.   It was natural for the Complainant to at this stage be very concerned at what was happening and he asked his Solicitor to write to the Respondent on his behalf, which his Solicitor did on 28th April seeking clarification as to the nature of the re-opening of the appeals procedure, suggesting it should take place in the town the Complainant primarily works as he had no income to pay for travel and subsistence.        
• This demonstrates either a lack of knowledge of or lack of concern for fair procedure at the highest level in the organisation.
• It is deeply concerning that the Managing Director of a Company that employs circa 200 people and that has a HR Department would conduct an appeal against dismissal without affording the appellant the basic right of being heard in his appeal.  
• I accept that in all the circumstances it was not unreasonable for the Complainant to adopt the position he did.
• I have difficulty accepting that this was a serious offer by the Respondent and it has all the hallmarks of an employer trying to backtrack on an obvious breach of fair procedures.
• I note that it was confirmed by the Respondent at the Hearing that it was intended that the re-opened appeal would not be an independent one but rather be heard by another named manager/member of staff, who would be junior in terms of level or status to the Managing Director.   This is contrary to fair procedures or natural justice as an appeal must always be heard not just by a person not already involved in the process, but also by a person at a higher level than the decision maker.   As the Managing Director was previously involved in this process this would mean that someone at a higher level than him would have to hear the appeal.
• The Respondent replied on 10th May 2016 stating they did not deal with third parties on internal parties.   While I fully understand and acknowledge the Respondent’s right to refuse or decline to deal with a third party/legal representative and accept their right to so inform the Solicitor I am surprised and concerned that they did not respond directly to the Complainant in relation to the relevant and reasonable matters raised in that correspondence.
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It is clear from the foregoing that the Complainant was not afforded fair procedures that protected his rights and that afforded him natural justice.   As can be seen from the foregoing these were not trivial or minor breaches of fair procedures but rather were major ones which means that the Complainant was denied basic fair procedures that protected his rights and accordingly rendered his dismissal as unfair.

Based on the foregoing findings I declare that the Complainant was unfairly dismissed and that his complaint under the Unfair Dismissals Acts is well founded and it is upheld.

I have carefully considered the appropriate redress available under the provisions of Section 7 of the 1977 Act.   I have taken into account all factors including the views of the parties as expressed at the Hearing and I have concluded that there is an absence between the parties of the minimum level of trust necessary to sustain an employer/employee relationship and that accordingly the only appropriate redress is compensation in the instant case.

I wish to confirm that in calculating the level of compensation I have taken into account the actual losses suffered by the Complainant and I have also taken into account that although the Complainant was summarily dismissed the Respondent did in fact pay him in lieu of notice, as the Complainant had between 2 and 5 years service at the time of his dismissal this would have amounted to 2 weeks’ wages.

The Complainant was unfairly dismissed by the Respondent and I require the Respondent to pay him compensation in the sum of €11,000.00c   within 6 weeks of the date of this decision.

Dated:   4 July 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly

Key Words: Alleged Unfair Dismissal