Complainant

Respondent

Anonymised Parties

Plant Operative

A Construction Supplier

Representatives

Ger Kennedy SIPTU

Thomas Wallace O Donnell BL instructed by Barry Collins Solicitor

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-00015769-001

13/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00015769-002

13/11/2017

The Complainant claims he was unfairly dismissed and not paid the note he was due. Subsequent to the Hearing the parties agreed to provide certain further information to assist the gathering of facts.

The Complainat was employed as a Plant Operative since 1993. He was absent from work from July 3rd to 10th 2017. He was allowed return to work by the Company Doctor on restricted duties. On arrival at work he was required to attend a meeting with Management. It lasted 5 minutes and the Complainant was suspended on the basis the Complainant was unwilling to complete lawful instructions regarding pre-start checks on plant equipment. The company note refers to the meeting as a disciplinary investigation meeting. A follow up letter confirmed the suspension and that the Complainant had failed to do pre-start checks on a fork lift. No further investigations took place. The Complainant was invited to a disciplinary meeting on July 20th, 2017 which was rescheduled to July 24th. The meeting confirmed there was no investigation into the additional disciplinary charges, that the Complainant was not assigned to work requiring pre-checks and he was denied to right to interview a key person. The disciplinary panel adjourned for 15 minutes and then dismissed the Complainant with immediate effect. The Complainant was represented by his Union Representative at the meeting.   The Complainant appealed the decision and at the appeal hearing the Complainant stated that he was suspended on 1 charge with an investigation to follow, no such investigation occurred, the disciplinary hearing was a breach of company procedure in that the disciplinary charges were put to the Complainant without investigations being complete, the request to interview a key person was ignored and the non-completion of pre start checks was common practice. The Complainants appeal was rejected and his dismissal confirmed. The Complainant has been subject to disciplinary sanction that have not applied to others in the same situation. No consideration was given to a sanction short of dismissal. Fair procedures were not applied. Minimum notice was not applied to the Complainants pay or dismissal.

The Complainat works as part of a shift team and safety is a key responsibility.

In June 2017 the Complainant hurt his back and was out of work for a few days. The Respondent initiated an investigation into why the Complainant had not completed a number of pre-starts checks on a vehicle.

The Complainant was called to an Investigation meeting, he had representation and admitted to only completing three safety check in recent months. The Complainant was suspended with pay immediately.

The Complainant was invited to a disciplinary meeting on July 20th, 2017 and the Complainant was given all the information relevant to the completed investigation.

On July 24th a Disciplinary Hearing took place and the Complainant was represented. The Complainants Representative agreed the investigation minutes were accurate and the Complainat offer various reasons why he did not complete the check lists. The Complainants Representative took issue with certain aspects of the Company procedure regarding the investigation and that in future there would be no issue with the completion of the check lists by the Complainant. The Complainant was dismissed after a break in the proceedings to consider the situation.

The Complainant appealed the dismissal and his appeal was heard, he was represented, and the appeal failed.

The Respondent denies that the dismissal was unfair.

The Law.

“6.1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

Also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her” submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”.

The Complainant was dismissed for the consistent breach of safety rules regarding the completion of pre-start checks on company heavy equipment. The Respondent placed a huge significance on its excellent safety track record and compliance with safety procedures. The Respondent, subsequent to the Hearing and at the Adjudicators request, provided a detailed analysis of the pre-checks completed by the relevant staff over a period of months prior to the Complainants suspension. It was obvious from the analysis that the Complainant, unlike other staff in the analysis, was not completing the safety pre-checks. Indeed, he seemed to ignore their completion on most days. This action both put himself and others at risk of a serious safety accident. It is not for an Adjudicator to replace the mindset of an employer when they were dismissing an employee. It is clear in this case that the Respondent holds safety performance to a very high standard and the Complainat failed in his duty to complete the pre-start safety checks. The Complainants case that the non-completion of pre-start up checks was common place was not supported by the Respondents analysis of same.

I have given significant consideration to the question of whether the dismissal sanction was appropriate to the actions of the Complainant in breaching safety rules and considered whether a lesser sanction might be appropriate. Given the disregard for safety that the Complainant appears to have had based on the analysis of pre-checks provided and for the safety of other colleagues who may be put at risk by the actions of the Complainant, I have decided that the only reasonable action the Respondent could have taken in the circumstances, and a decision I uphold, was to dismiss the Complainant. While the Complainant also claimed that there were procedural issues to do with the Respondent’s investigation of this case, and there may have been some, none were of such significance or such core relevant facts omitted as to warrant the overturning of a dismissal for the consistent breach of a fundamental safety procedure. The claim for Unfair Dismissal is therefore not well founded. (CA-00015769-001)

The Complainant was dismissed for serious continued breach of a safety procedure. Section 8 of the Act allows an employer not to pay notice when a person is dismissed for gross misconduct, which continuous breach of a safety procedure was. The claim Under the Minimum Notice and Terms of Employment Act 1973 is therefore not well founded. (CA-00015769-002).