ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Tyre Fitter | Tyre Manufacturer |
Representatives |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00025485-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
The evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
Also, an Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 1st of February 2019) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
Background:
The Complainant brings a claim against his previous Employer for having Dismissed him Unfairly and contrary to legislation. The Complaints are set out in a Workplace relations Complaint form dated the 1st of February 2019. |
Summary of Complainant’s Case:
The Complainant was represented, and I heard the complainant’s submission in full and I heard from the Complainant in person. The Complainant has mitigated his losses albeit he now works on a Contract to Contract basis which is more uncertain than the work he had enjoyed for 23 years. The Complainant claims that the allegations made against him were never established. |
Summary of Respondent’s Case:
The Respondent was represented, and I heard the Respondent submission. Three witnesses gave evidence on behalf of the Respondent including the Line Manager the HR representative and the individual Conductor of the Disciplinary process. The Respondent asserts that in the interests of safety it was necessary to dismiss the Complainant. |
Findings and Conclusions:
I have carefully listened to and considered the evidence adduced in the course of this hearing. The Complainant herein has worked for this company and it’s predecessor in title for 23 years. It is clear that the Complainant’s role is very important from a safety perspective. The Complainant has been placed by his employer in a facility owned and operated by a client of the Respondent company. The Complainant has been assigned the task of measuring the tyre depth for the fleet of buses that the client operates out of this site. The Respondent impressed upon me the fact that the role undertaken by the Complainant is vital in terms of passenger care and safety and that the Complainant was expected to measure tyre thread depth accurately and conscientiously so that no tyre would be allowed to go under the recommended depth and certainly never under the legal depth. I accept that the obligation placed on the Complainant regarding customer safety should have been at the forefront of the Complainant’s mind at all times. Indeed, tyre safety was his primary function. However, I do note that there is also an obligation on the fitter to ensure that “maximum tyre life is achieved” so that his Employer would wish that any fitted tyre would be expected to achieve as long a life expectancy as possible. I accept that up until the events that gave rise to the proceedings herein, the Complainanat had been performing this task in a satisfactory manner. I understand that around four years ago the system of inspection was computerised and that the Complainant gave evidence that he was uncomfortable with the new technology. I can understand this where the Complainant had worked in a particular way for 19 years and the onus was on the Employer to ensure that he was fully trained up. It seems that for three years or so, the system was generally working fine and the Complainant was taking the relevant measurements using the calibrated manual tread depth gauge. On or about the 6th of October 2017 the bus fleet owner (the client) conducted an on-site inspection of tyres on their fleet. This was not unusual and I would perceive this to be good practise where customer safety is an issue. It seems however that the inspection threw up some problems with the complainant’s record keeping and in particular tended to show that his measurement taking was erratic and incorrect. The nett result was that up to seven tyres affixed to operating buses were below the recommended thread depth. They were not below the legal thread depth but the Employer and the client had an agreement which meant the recommended thread depth operated as a hard limit. The system for measurement operated by the Complainant was to use a bluetooth probe to take a measurement electronically which said measurement is recorded on a dirty sheet which is then copied into the excel spread sheet. Clearly, somewhere along the way the information being gathered or transcribed was being done so inaccurately. The Complainant accepts that the inaccuracy lay with him and that some part of his process was therefore malfunctioning. The Complainant suggested it might have been his failing eyesight or the fact that he wasn’t computer proficient. However, the issue had not arisen before and the period of inspection related to two to three weeks work. On balance I accept that there was a problem and that the problem needed to be dealt with and that a high degree of seriousness lay in the fact that the client relies on the Respondent company employees to ensure that their clients are being transported on safe tyres. On balance, I think it was imperative that the Employer would try to understand how this situation had arisen in such a short period of time. I am not sure that the accusatory letter sent by the client to the Employer was the safest starting point. To my mind, this letter written by the Chief Engineer from the client company and addressed to the Employer represents a final condemnation of an employee who has given 23 years of service. The Chief Engineer is not an Employee or Manager of the Respondent company and has made a judgement in relation to the Complainant’s work practises. On balance I accept that the Complainant’s representative’s argument, that the attitude displayed by the Chief Engineer’s letter quickly becomes the pervasive attitude in the Company, is a correct depiction. The Investigator is so keen to allocate blame that he clearly oversteps his brief and goes beyond making findings of fact to making a finding of Gross Misconduct. This is picked up by the Complainant’s line Manager who sets up the Disciplinary process by accusing the Complainant of wilfully and deliberately setting out to endanger the lives of others. A very high (almost criminal) standard of proof would have to be disclosed to sustain those charges. There is no room for negligence. The only explanation for the phrasing of the allegations in the way that the Line Manager did seems to stem from a misguided desire to find the Complainant guilty of Gross Misconduct allowing for Summary Dismissal and leaving no scope for making a finding of a somewhat moderate Misconduct simpliciter. I do not understand why the Line Manager phrased his allegations in the way that he did other than to align himself with the company Disciplinary policy. Again, this to my mind demonstrates a pre-determinative feature to this whole process. On the face of it, I can see that the Complainant may well have Misconducted himself in the manner in which he was apparently carrying out his tasks. He might have been lazy or sloppy or short sighted or uninformed. I do not however see that the Complainant has wilfully and knowingly sought to falsify measurements and more importantly there is no evidence to suggest he actively sought to endanger the lives and safety of others. The Respondent has not demonstrated a malicious intent on the part of the Complainant and to be fair to the Complainant’s Line Manager he conceded this point in his evidence at the hearing. This Disciplinary process over reached and came up short. There was never any evidence to satisfy the allegations made. In considering all the evidence, I find that the Complainant was Unfairly Dismissed. The Complainant was careless, and his carelessness should have been investigated in the ordinary way. The Disciplinary process would not have been tainted from the start if a more moderate and reasonable approach been taken from the outset. Of course, the outcome of that process may still have resulted with the Complainant’s employment being terminated, albeit with Notice (a significant feature in a 23 year employment). The difficulty I have with the process that was undertaken is the impossible finding of Gross Misconduct on the basis of the evidence adduced. In these circumstances, and on the basis of the narrow grounds outlined, I am prepared to find in favour of the Complainant. I note that the Complainant has mitigated his losses. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00025485-001 The Complaint succeeds, and I award compensation in the sum of €10,500.00 |
Dated: 04/06/2019
Workplace Relations Commission Adjudication Officer:
Key Words:
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