Complainant

Respondent

Anonymised Parties

A crane operator

A port company

Representatives

SIPTU

Anne O'Connell Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00009700-001

14th February 2017

The complainant worked for the respondent between the 31st May 2013 and the 22nd November 2016. He asserts that he was dismissed unfairly and the respondent denies the claim.

In its submission, the respondent outlined that the complainant was dismissed on grounds of gross negligence arising from a collision while driving a 14-tonne crane. It submits that the complainant was afforded fair procedures and that the sanction of dismissal was fair. It refers to the training and qualifications of the complainant and that he was one of their most experienced operators. The respondent submits that the complainant only reported the collision two days after the incident and did so after a manager raised the issue with him. The complainant was suspended on the 13th October 2016 and asked to attend an investigation meeting on the 17th October 2016. The respondent then held a disciplinary hearing on the 21st October 2016. The respondent stated that the collision took place when the complainant was operating the crane at speed, while looking the other way. Further disciplinary hearings took place on the 4th and 14th November 2016. The disciplinary finding issued on the 22nd November 2016, dismissing the complainant for gross negligence and for failing to follow management instruction regarding reporting the incident. Following the complainant’s appeal, he attended an appeal hearing of the 6th December 2016. The decision to dismiss was upheld by letter of the 19th December 2016.

The respondent relied on Hennessy v Read & Write Shop Ltd (UD 192/1978) and O’Malley v An Post (UD 1285/2014) regarding the application of the test of reasonableness to an employer’s decision to dismiss an employee on conduct grounds. The respondent submits that the dismissal was substantively and procedurally fair.

The respondent confirmed that the identity of the respondent and that it is an unlimited company. The respondent outlined that the cabin driven by the operator is equipped with cameras and an anti-collision alarm. The respondent outlined that the collision of the 9th October 2016 took place after the complainant had driven the crane for 145 metres while looking in the opposite direction. The respondent submitted that there were no similar incidents with other drivers.

In response to the complainant’s submission, the respondent submitted that the disciplinary manager had carried out his own tests on the equipment. The complainant had not proven that the warning system was not working and the respondent had tested it afterwards. The appeal manager accepted that the crane had slowed down immediately before the collision. The complainant had not been disciplined for an earlier incident and had been warned about his driving. This was not an aggravating factor. The complainant was supplied with the photographs and videos of the tests. The HR Manager spoke at the appeal hearing to repeat what had been said at the earlier stages. The complainant omits that he had been looking in the opposite direction and had wrongly relied on the anti-collision system. The respondent outlined that the complainant worked 8.5 hours, and not 12 hours, on the day of the collision. This included the period of breakdown.

The respondent outlined that the complainant had not shown remorse and neither had he admitted other mistakes. It outlined that the complainant only reported damage to the mudguard on one crane and this crane was, therefore, the only one checked. The complainant’s act of reporting the incident to a colleague did not reach management as this colleague was an acting foreman. The respondent commented that this reporting took place when the complainant and the colleague travelled home in a car. One witness for the respondent stated that this colleague had told him of damage to the mudguard but had not referred to the incident. The respondent referred to a chain of emails from management seeking to find out how the damage happened, but this only came to light some days later.

The respondent outlined that the complainant was suspended because of the seriousness of the incident and the recent death of a competitor’s worker. The CCTV footage showed a colleague and the complainant looking at one crane. The respondent submitted that the dismissal arose from the health and safety issue and that complainant thought that he did nothing wrong. One witness said that the complainant referred to feeling sorry for himself, but he never apologised for the collision. The appeal manager said that he did not recall an apology and the complainant had said very little.

In his submission, the complainant asserted that the respondent had unfairly dismissed him. He emphasised that the respondent failed to consider whether the crane’s anti-collision system was working correctly. He submitted that the disciplinary manager erroneously concluded that the anti-collision system would not slow down and stop the crane before impacting a collision. He submitted that had the system been working, the collision would have been avoided or any impact minimised. The complainant submits that it was procedurally unfair of the respondent to bring up previous incidents during the disciplinary process. He had not had the opportunity to challenge the negative findings made of those incidents. This is referred to in the letter of dismissal, in particular the stated prior refusal to engage with management. The complainant asserts that it was wrong for the HR manager to be involved throughout the whole process. The HR manager had asked questions during the investigation and became an expert witness in the disciplinary process. The complainant criticises the interventionist approach of the HR manager at the appeal hearing, in particular with reference to the anti-collision system.

The complainant relied on Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 to submit that a dismissal must be proportionate to the gravity of the complaint and the gravity and effect of the dismissal on the employee. In mitigation, he refers to the anti-collision system not working and his working a 12-hour day. The complainant submits that his dismissal fell outside the range of reasonable responses and the respondent did not consider any alternative. The complainant outlines that he secured alternative employment on the 30th January 2017. The complainant further relied on the Labour Court authority of DHL Express (Ireland) Ltd v Coughlan (UDD1738).

The complainant outlined he started worked at 8am on the 9th October 2016 and the incident occurred at 8.30pm. He was suspended on the 13th October 2016. The anti-collision system should have stopped the crane and warned the driver. The respondent had not submitted documentation to support the assertion that the anti-collision system was working. This system involved yellow and red warning lights as well as a beeping sound, similar to the sound of a reversing truck. The complainant said that the warning did not occur on the night of the incident. He had identified this problem before and raised this with a representative of the crane manufacturer. He did this when testing the machine and had not told the respondent of this issue. The respondent had not formally raised any issues about him. It was unfair of the respondent to use previous incidents against him as he had no right to respond to these incidents. Nevertheless, the respondent used the incidents against him in deciding sanction.

In reply to the respondent, the complainant said that he arrived for work at 8am on the day of the incident and there was no machine available to him. He stayed in the canteen between 1.30 pm to 4.50 or 5pm. He had also been stuck in the cabin when another crane was broken down. It was reported to the garage and the complainant and another inspected both cranes. The complainant apologised for the collision during the disciplinary hearing and said that he was sorry for what happened.

The parties gave evidence regarding the events of the 9th October 2016 and the investigation/disciplinary process that followed. They referred to various documents and to CCTV footage. At the adjudication, they made legal submissions as to the applicable test in such dismissals. I have considered these submissions and evidence in reaching these findings.

The parties referred to Bigaignon v Powerteam Electrical Services Ltd (UD939/2010), where the Employment Appeals Tribunal held:

“The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate tothe alleged misconduct. Does the punishment fit the crime? In considering this question the factthat the Tribunal itself would have taken a different view in a particular case is not relevant. Thetask of the Tribunal is not to consider what sanctions the Tribunal might impose but ratherwhether the reaction of the Respondent and the sanction imposed lay within the range ofreasonable responses. The proportionality of the response is key and that even where properprocedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissalwill be rendered unfair.

The Tribunal notes that the claimant was fully aware that there was zero tolerance of drug useand had signed a document where this was clearly set out. The Tribunal also notes that theclaimant’s duties involved working on overhead power lines. This meant working at significantheights which was safety critical, even if the lines were not live.

The precise terms of the test to be applied as to whether the sanction was set out

in Noritake (Ireland) Limited V Kenna UD88/1983 where the Tribunal considered the matterin the light of three questions:

1. Did the company believe that the employee mis-conducted himself as alleged? If so,

2. Did the company have reasonable grounds to sustain that belief? If so,

3. Was the penalty of dismissal proportionate to the alleged misconduct?”

It is clear from the CCTV footage that the crane was driven at high speed for over a minute. While the complainant’s crane was slowing down, it collided with a stationary crane. Damage was caused to both cranes. The complainant acknowledged looking in the other direction when moving the crane. He asserts that the anti-collision system failed to operate, an assertion the respondent disputes. It refers to testing the system on the crane after the incident. It also refers to the system not being able to prevent the collision and that it is a back-up. The Incident Record Report refers to the collision of the 9th October 2016 as being of “Level 1” severity. It is difficult to dispute this categorisation of the incident. There followed an investigation and three disciplinary meetings. The complainant challenged the decision to dismiss on appeal.

The complainant criticises the procedures adopted by the respondent, for example the presence and interventions of the HR Manager. He challenges the reference to previous incidents, which were not formally dealt with by the respondent. He says that this deprived him of the opportunity of challenging adverse findings latterly invoked by the respondent. Taking these criticisms at their height, I find that they do not undermine the fairness of the process. Overall, this was a thorough and considered process. Having heard from the various managers, it is a process where the disciplinary manager and appeal manager made their own decisions.

There was discussion at the adjudication regarding the complainant’s working time on the 9th October 2016. He spent part of the afternoon in the canteen. There was discussion regarding whether the 90 or so minutes he was stuck in the crane cabin following a fault was working time. It is clearly working time and one where the complainant was left stationary, at great height.

There was considerable emphasis on whether the anti-collision system was operational and whether it would have prevented the collision. The complainant referred to the sensors not working at the meeting on the 17th October 2016. There was no CCTV footage from inside the cabin at the time of the collision, depicting whether the system had activated. This is a question that cannot be resolved conclusively.

The decision to dismiss the complainant was expressed in the following terms: “I feel that the gross negligent action involved in the incident, combined with a prior history of failing to follow management instruction and reckless behaviour, leaves no alternative but to dismiss you from your employment with [the respondent].”

Even assessing this case with the finding that the anti-collision system did not sound, I find, on balance, that the dismissal was not unfair. The cause of the collision was the complainant driving the crane at high speed for over one minute, while looking the other way. This central fact was not in dispute, although the complainant referred to looking out for containers. The respondent refers to the imperative of health and safety. This must include operators of large machinery remaining vigilant. The respondent’s finding that the complainant had not been vigilant falls within the reasonable band of findings arising from the process. Its subsequent decision that this merited dismissal also falls within the reasonable and proportionate band of sanctions available to the employer. This concept of a reasonable band of responses has resonance where it is fairly established that a serious health and safety concern has arisen.

I find that the respondent’s reference to previous incidents does not render the decision to dismiss unfair. I note that the complainant did not assert that these historical incidents did not take place. He gave an account of these incidents at the meeting of the 21st October 2016. The disciplinary manager also heard from line managers, in the presence of the complainant. In this context, the respondent was entitled to frame its decision arising from the events of the 9th October 2016 in the context of these earlier incidents.

For these reasons, I find that the complaint of unfair dismissal is not well-founded.

CA-00009700-001

For the reasons set out above, I find that the complaint of unfair dismissal made pursuant to the Unfair Dismissals Act is not well-founded.

Unfair Dismissals Act

Reasonable band of responses for an employer