Complainant

Respondent

Anonymised Parties

An Electrician

An Employer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00007069-001

19/09/2016

The respondent employed the complainant as an electrician from 10th of February 2006 until the 15th of April 2016. He was paid €965 and worked 40 hours per week. The hearing took place on two separate dates (see above) and the parties made written and oral submission to the hearing. Supplementary information was provided concerning mitigation and loss post hearing.

The respondent submits that the complainant was fairly dismissed based on his own gross negligence arising from the discovery of two live wires during the dismantling and installation of a named production line in August 2015. “The investigation involved looking at the machinery on the production line, looking into the times the machinery had been changed, tracing back to the machinery that had been connected to the two wires and looking at who had carried out the work.” Arising therefrom the respondent was confident that the complainant who was the only electrician in its employ was responsible for having left the loose wires in a live and dangerous condition. The circumstances were of grave and serious import for the respondent and its employees. The subsequent part of the investigation was conducted with due regard to the complainant’s rights in natural justice.                                                                                                                                                        It is acknowledged that the complainant has alleged that subject matter of the investigation which led to the herein dismissal was considered by an earlier investigation which was carried out by the respondent’s directors in August 2015 and resulted in the imposition of a final written warning. This earlier investigation concerned an allegation that the complainant was smoking in the workplace, had stripped heavy duty cables and referred to electrical faults and safety concerns; “the current matter of the loose live wires did not form part of this.”

The complainant submits that he was unfairly dismissed. The respondent had signalled its intent in this regard as far back as May 2015 when one of its directors informed the complainant that “he had one month to save his job”. His record prior to 5th of May 2015 was exemplary. The complainant was subjected to three allegedly separate investigations in the period from July 2015 to March 2016. Investigation meeting 1 was convened on the 23rd of July 2015 to review an allegation of smoking in the electrical room and the stripping of heavy duty cable without permission. There were additional allegations presented at the meeting and no evidence adduced to conclude that he had stripped the copper in fact his actions would have indicated otherwise viz. he actively solicited the provider of the cable to find another purchaser. Photographic evidence which was relied upon by the respondent and in its possession, was not provided to the complainant in advance of the hearing.                                                       Investigation meeting 2 was convened on the 18th of August 2015 to consider allegations of gross misconduct in relation to “electrical faults and safety concerns regarding work you have carried out”. The documentation and photographs which the complainant was expected to comment upon were not provided in advance and were not provided despite request until prior to the disciplinary hearing. He had never been provided with a written contract of employment, copy of the employee handbook or the updated safety statement.                                                                                Investigation meeting 3 was convened on the 4th of March 2016 and was followed by a disciplinary hearing on the 6th inst., the subject matter of which was part of the previous disciplinary process and therefore the subsequent dismissal amounted to a double jeopardy. The photographic evidence relied upon by the respondent forming part of investigation 2 and subsequent disciplinary action included the same photographic evidence relied upon in investigation 3 and subsequent dismissal.        

The justification relied upon by the respondent for the dismissal in this case arises from the alleged discovery of two live wires pursuant to the final dismantling the IG production line on the 5th of August 2015. The original line had been disconnected by the complainant at a significantly earlier date but was reconnected by an external contractor on that date. The respondent submits that the complainant was dismissed for gross misconduct following a disciplinary process which took account of his rights on the one hand and the existence of a final written warning on the other. Investigations 1 and 2 were amalgamated in the disciplinary process. The ensuing final written warning was appealed internally but was not successful.

I am satisfied that there were procedural flaws associated with these investigations however I intend to deal with the central tenet of the complainant’s submission viz. that Investigation 3 which resulted in the herein dismissal was fundamentally flawed in that it amounted to a double jeopardy as the alleged live wires were part of the subject matter dealt with in Investigation 2.

The subject matter of Investigation 2 was brought to the attention of the complainant on the 14th of August 2015 by way of letter from the investigation officer in which he referred to allegations of gross misconduct arising from “electrical faults and safety concerns regarding work you have carried out.” The respondent had previously explained that this was “a new and separate preliminary investigation at this stage, …”. The meeting took place on the 18th of August 2015 and the general nature of the allegation was particularised. It was explained to the complainant that it was a fact-finding meeting and that the allegations were made by the external electrical contractor engaged to install the new IG production line. The investigator showed the complainant “some photographs taken by the contractor and their report, issued to us over concerns they had.” There were eight areas of concern addressed in the meeting the relevant one being that of “live and unsafe cables”. The complainant was specifically shown a copy of each of the photographs individually under the heading “live and unsafe cables” and offered a “no comment” in response to each question.

Thereafter he was invited to a disciplinary hearing on the 25th of August 2015 at which the issue of “live and unsafe cables” was once again addressed. The complainant noted that it was impossible to determine if a cable was live and unsafe from a photograph and that the investigation into this matter was procedurally flawed insofar as the report (which made no such complaint) and photographs were not provided in advance of the investigation meeting. He answered all questions put thereafter in relation to the subject matter denying any wrongdoing.

As noted the report based on a visual inspection conducted by the external contractor (it would appear on the 11th of August 2015) makes no mention of the live and unsafe cables although an e-mail to the director mentioned above from the contractor on the 28th inst. specifically references live and unsafe cables as attachment and these were the same photographs which were shown to the complainant in the course of Investigation 2 and provided to him on the 20th of August in advance of the disciplinary hearing which resulted in a sanction of final written warning. The specific photographs are numbered 103 and 105 in the respondent’s Booklet of Investigations/Disciplinary Hearing as it relates to Investigation 2.

I am satisfied that the external contractors’ report and attached photographic evidence relied upon by the respondent should have been provided in advance of the meeting of the 18th of August 2015 but was not despite a prior request from the complainant. I am also satisfied that there are inconsistencies in the respondent’s submission as it relates to the discovery of the live wires on the one hand and its subsequent actions on the other. I note and accept that there was no contemporaneous report logged by the electrical engineer on the day and that the matter had been reported to one of the company directors by one of its employees on the day.

Concerning Investigation 3 it is a matter of fact that the relevant photographs (they appear on pages 95 and 94 in the respondent’s Booklet of Investigations/Disciplinary Hearing as it relates to Investigation 3 and as earlier referenced on pages 103 and 105 in the same booklet as it relates to Investigation 2) were taken contemporaneously by the same director who conducted the disciplinary hearing arising from investigation 3 on the 6th of April 2016. The complainant pointed this out at both the investigation and disciplinary stages to no avail. These facts are acknowledged in the relevant minutes. It is clear therefore that the complainant had been investigated and disciplined in respect of the same allegation on two separate occasions amounting in all the circumstances to a double jeopardy.

In these circumstances the dismissal in this case was wholly flawed.  

The complaint is well founded and the appropriate compensation in all the circumstances is one of compensation in the amount of €35,000 (say thirty-five thousand euro).