ADJUDICATION OFFICER DECISION/RECOMMENDATION 

Adjudication Reference: ADJ-00010211

Parties:

Complaint(s):

Date of Adjudication Hearing: 28/Feb/2018

Workplace Relations Commission Adjudication Officer:Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background 

The case before you today concerns a claim by the Claimant against his former employer the Respondent under the Unfair Dismissals Act 1977 to 2015, the Minimum Notice & Terms of Employment Act and the Organisation of Working Time Act. The Claimant was dismissed following an investigation for gross misconduct. It is the Respondents position that the dismissal was not unfair within the meaning of the Acts. 

The Claimant commenced employment as an ATP Operator on the 18th of August 1997. 

On the 1st of June 2017 at approximately 13:30pm a loud bang emanated from the SWET (Superalloy Welding at Elevated Temperature) welding stations. A production part including its fixture head had shot out of its processing unit and landed on the workbench. 

An employee who was processing the parts had returned from his break and had turned on the argon gas supply and started heating the part to approximately 800 degrees Celsius, using heating lamps as per normal operating procedures. He got up and was standing 1-1.5 metres away from the station at the time of the incident, his back was towards the workstation and he was talking to another employee. Had he been sitting at his workstation, he would have suffered serious injury or even death, because of the incident. As they stood there another employee, the Claimant, walked past and didn’t say anything but one of the witnesses later reported that the Claimant was laughing.

The incident was immediately reported to his supervisor. 

The respondent’s supervisor conducted an examination of the work area on the 1st of June and took statements from each of the three employees. He also walked through the area immediately following the reporting of the incident and photographed the location. The respondent supplied statements from (3) three witnesses who confirmed what had happened. 

The supervisor walked through the incident as described in the Claimant’s statement. The Claimant confirmed that he approached the incident from the supervisor’s office on his way back from lunch. The area was reviewed by the supervisor and the photographs. 

On the 2nd of June 2017, HR Manager wrote to the Claimant informing him that he was being placed on suspension, with full pay, pending investigation into the incident on the 1st of June 2017.

Investigation

The Hr Manager interviewed the witnesses on various dates statements submitted at the hearing. On the 9th of June Mr Cashman wrote to the Claimant inviting him to an investigatory meeting regarding the incident. He was informed of his right to bring along a union representative

On the 9th of June, an investigatory meeting was held the Hr Manager was the investigator and with a note taker (name supplied) at the meeting. The Claimant was accompanied by two SIPTU shop stewards. 

Prior to commencing the meeting, the HR Manager confirmed with the Claimant that he was fit to attend the meeting, as the company had previously received a Sick Cert from him however he stated he was happy to continue the meeting. The Claimant had been requested to bring his work jacket to the meeting with him but didn’t. He was supplied with another jacket in the same standard size. The Claimant stated that he believed his sleeves were a bit shorter and that he had a tear on his cuff. The HR manager confirmed that the jackets were standard sizes and sleeve lengths. 

An investigation report was compiled by the HR Manager and a copy of the report and witness statements was provided to the claimant. The investigators report recommended that a disciplinary meeting be held with the Claimant and that the occurrence should be treated as a near miss and recorded accordingly.

The Disciplinary meeting took place on the 12th of June, the respondents Production Manager wrote to the Claimant inviting him to a disciplinary meeting on the 14th of June. The Claimant was informed that the allegation against him was of reckless endangerment and failure to report an accident. He was informed that he will have full opportunity to reply to all evidence and to make representations on his behalf at the meeting. He was advised of the severity of the allegation and that the outcome of the meeting may result in disciplinary action, up to and including dismissal without notice. He was informed of his right to bring a union representative and recommended to do so. Along with the letter he was furnished with the investigation report and a copy of the company’s disciplinary procedure.   The meeting took place on the 15th June where the he was accompanied two SIPTU Shop Stewards 

The Claimant maintained his position that the incident was an accident and was in no way horseplay. He stated that if this incident was horseplay or a joke he would have called other parties to witness the event. He was aware that safety is very important within the factory. He again apologised for the incident and stated he was sorry. The union submitted that this incident was human error and recommended that this be added to the investigation report. 

A follow up meeting was held on the 16th of June 2017 whereby the production manager confirmed that he had considered all the facts and listened to Claimant’s response. He had spent a considerable amount of time reviewing the investigation report and the evidence presented and he couldn’t see how such an incident could happen unintentionally. He found the incident to be very serious and considered it gross negligence. 

The Claimant was provided with the opportunity to speak to which he maintained that there was no intent on his part and that it was human error. 

The Production confirmed that due to the seriousness of the situation, they would be terminating the Claimant’s contract with effect from the 19th of June 2017 and this was confirmed in writing. The claimant was advised of his right to appeal when he did.

Respondent’s position 

The deliberate or reckless disregard for health and safety of an employee or another employee is a common example of serious misconduct in industry. The respondent had reasonable grounds for their belief that the claimant had engaged in serious misconduct, based on the evidence of two other witnesses and the extensive investigation conducted into this incident. The claimant was unable to provide a clear and consistent explanation for the events which lead to the incident which placed his work colleagues at significant risk of injury. Based on the evidence available to the respondent, who conducted a full, fair and detailed investigation of the incident, it was reasonable to conclude that the incident was because of the reckless disregard of the claimant’s duty of care to himself and his work colleagues. 

The conduct of the claimant was such as to justify the claimant being dismissed for serious misconduct and the sanction of dismissal without notice was a reasonable and proportionate sanction in the circumstances.

Union Position.

The Union submitted on behalf of the claimant that;

1. he didn’t’ agree with the reason for his dismissal, namely “reckless endangerment and disregard for company policy”;
2. No alternatives to dismissal were considered;
3. His service had not been taken into consideration;
4. The principles of natural justice were not afforded to him until the intervention by SIPTU;
5. His good work record had been disregarded
6. The sanction was disproportionate, and many other alternatives could have been explored;
7. His responses were not considered, and all the circumstances were not considered when the decision to dismiss was implemented. 

The Union went on to question Managing Director independence, alleging that the MD had made his decision already and alleging that his behaviour was aggressive and unacceptable and suggested a break.

SIPTU wrote to the company asserting that they were entitled to have an appeal by an “independent person, who makes a decision because of the appeal” 

The Union submitted that the MD’s behaviour was hostile and aggressive and unprofessional that he had predetermined the outcome and was considering warnings which were no longer live. She requested a further appeal with an independent third party. The union case law to support the position

Findings

Both parties made extensive submissions at the hearing. 

I find that the incident that took place on the 1st June is not in dispute between the parties. 

I find based on the submissions and documentation submitted at the hearing that this incident could have had serious implications and endangered the wellbeing of employees. 

I find that a thorough investigation took place where the claimant was afforded every opportunity to tell his side of the story and to explain his role, if any, he had in creating the incident. 

I find that the claimant had copies of the 3 witness statements which have not been contradicted. 

I find that issues arose at the appeal stage where the union deemed that the Managing Director had made up his mind prior to the hearing the appeal. I find that where the claimant's work record was raised a verbal exchange took place between the parties. I am not going to make a comment on the rights and wrongs of that exchange. 

I find that it is critical in any appeal hearing that the claimant is afforded every opportunity to put forward his case and for the person hearing the appeal to give due consideration to the arguments being made on the claimant’s behalf prior to arriving at the decision. 

I find that it is not for a third party to seek to establish the guilt or otherwise of the claimant, nor is it for the third party to indicate whether the third party, in the employer’s position, would have acted as the employer acted. Rather it is to consider against the facts whether a reasonable employer, in the same position, would have done and decided the same thing in the circumstances. Looney v Looney UD 843/1984, 

I find that the investigation and the disciplinary took all factors into consideration. The claimant was provided with the witness statements and the right of representation at all time during the process. 

I find the conduct of the appeal hearing by both parties was unhelpful in the circumstances.

I find there is a technical breach in the appeal procedure. 

I find that the claimant was responsible for his own dismissal and on that basis, I am making the following;

Decision 

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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 find the claimant was responsible for his own dismissal and his claim Unfair Dismissal falls. 

I find for the technical breach of the appeal procedures I award the claimant the sum of €2500.

CA 00013312-002

Minimum Notice and Terms of Employment Act 1973 

The claimant has claimant that he did not get his appropriate notice.

Findings

The claimant was dismissed for gross misconduct and in such situation notice does not apply.

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint is not well founded and falls

CA-00013312-003

Organisation of Working Time Act

The claimant is seeking payment of 13 annual leave days that he is owed.

Findings 

I find that based on the evidence as submitted that the claimant full year entitlement was 26 days. As the he had only worked 6 months his entitlement was 13 days.

The claimant had a carried over 3 days from 2016. He had taken 12.5 days in 2017.

The claimant’s entitlement was (13.00 for 6 months plus 3 (2016) =16 minus 12.5 days taken left a balance 3.5 day being owed which was paid to him in his final payslip

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that based on the evidence as presented at the hearing the claimant got paid his outstanding holiday entitlement and the complaint is not well founded and falls.

Dated:26th June, 2018

Workplace Relations Commission Adjudication Officer:Jim O'Connell

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