Complainant

Respondent

Anonymised Parties

Warehouse Operative

Sales and Distribution

Representatives

Vivian Cullen SIPTU-Trade Union

Conor O'Gorman IBEC

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-00003646-001

04/04/2016

The Complainant was employed as a Warehouse Operative by the Respondent from 14th July 2010 until the employment was terminated with 4 weeks notice on 16th December 2015. The Complainant was paid €450.00 gross per week and he worked 39 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission on 4th April 2016 alleging he had been unfairly dismissed.

Two of the scheduled Hearings were adjourned pending the outcome of Personal Injury proceedings. I was informed by the Complainant’s SIPTU Representative by email dated 21st June 2018 that the Personal Injuries claim had been settled and seeking a further Hearing on the unfair dismissal complaint. I requested the WRC to reschedule this complaint on 26th June 2018 and a further Hearing was then scheduled for 6th September 2018.

The Complainant was dismissed in November 2015 for his failure to follow a fundamental aspect of his job and for breaching health and safety in relation to an accident that had taken place on site on 15th October 2015. At the time of his dismissal the Complainant was carrying a Final Written Warning for a previous accident.

On 26th November 2014 the Complainant reported an accident on site where he alleged that another employee had hit the machine he was operating causing him to jerk his arm. The Company conducted a comprehensive accident investigation where it was alleged during the process that the Complainant had misled the investigation with incorrect information. The matter was referred for investigation under the Disciplinary Procedures which found the Complainant had made a significant contribution to the incident and had breached health and safety rules. The Complainant was issued with a Verbal Warning on 25th May 2015. The Complainant appealed this warning but the Verbal Warning was upheld.

There was an incident on 11th July 2015 when the Warehouse Team Manager, named, reported an incident to HR where the Complainant allegedly caused a pallet to tip over. There was an investigation followed by a Disciplinary Hearing following which the Complainant was issued with a Final Written Warning on 23rd September 2015 to remain on his File for a period of 12 months. The Complainant did appeal this Final Written Warning and following an Appeal Hearing the decision to issue the Complainant with a Final Written Warning was upheld.

On 15th October 2015 an incident took place on site where the Complainant alleged that he injured himself again during the course of his duties. On the day of the incident the Complainant and another named employee were involved in an accident whereby the mechanical handling equipment, MHE, the other named employee was driving tipped the pallet of the Complainant’s MHE. The collision was slight and neither of the operatives reported the accident at the time it occurred. The Complainant later reported an injury when he was approached by his Manager, named, as the Complainant was talking to other colleagues. Minutes had passed between the incident and the Complainant making his injury complaint to the Manager. This Manager is obliged by procedure to ensure a report is prepared and each accident/incident is included on the “End of Shift” handover and the Health and Safety Manager, named, checks the “End of Shift” every morning. This Manager checked the end of shift on 16th October 2015. She deemed it necessary to get further witness statements. CCTV was provided by the Security Manager which included the scene which shows the Complainant mishandling the pallet. This was all included in the pack sent to HR for full investigation. Any suspected breaches of Health and Safety are referred to HR for full formal investigation.

This investigation took place on 2nd November 2015 and the Complainant was accompanied by a work colleague. The CCTV footage and witness statements were reviewed at this meeting. It became apparent that prior to the collision the Complainant had attempted to manually lift and pull a pallet full of stock to get it off bay as it was apparent the pallet had become stuck and the Complainant then proceeded without assistance and thereby increased personal risk to himself and to the stock on the pallet. This was a clear breach of Health and Safety and Manual Handling guidelines, The second scene of the CCTV shows the collision between the Complainant and the other Employee and the third scene shows the Complainant completing his task b y placing the pallet back on his MHE into position on the warehouse floor. The Complainant appears to do this without any discomfort, a key issue which emerges later.

Witness Statements were received from the named Manager and the other named employee involved in the incident. During the investigation the Complainant contended the collision was more than a slight collision. The findings of the investigation were issued to the Complainant on 11th November 2015. It found that he had compromised his own health and safety contrary to his training and the matter was forwarded for a formal disciplinary hearing.

The disciplinary hearing took place before the named Shift Operations Manager on 12th November 2015 and the Complainant was afforded representation and a note taker was also present. The Complainant was accompanied by his Trade Union Shop Steward, named. The outcome was that the Health and Safety related sanctions already issued to the Complainant and the current breach of the health and safety procedures were so significant that they could not be sustained by the Respondent with no assurances by the Complainant that this behaviour would not be repeated into the future. The Manager also found that the Complainant’s honesty had also been called into question and resulted in the trust and confidence necessary for the employment relationship to be eroded. The decision was to dismiss the Complainant with a right of appeal afforded to the Complainant.

The appeal hearing took place on 3rd December 2015 and was conducted by the named Site General Manager. The Complainant was afforded a right to bring his external SIPTU Representative. The Complainant was represented by his named SIPTU Official. The outcome was to uphold the decision to dismiss.

The Respondent outlined five other personal safety incidents three of which resulted in personal injury to the Complainant and payments were made to him for same.

The Respondent argued that the decision was a reasonable response of a Fair-Minded Employer and they case law to support their argument that when trust has been undermined the employment relationship cannot be sustained.

The Complainant and another named employee were involved in an incident on 15th October 2015 – detailed Following the incident when the Complainant was getting off his machine on his way to report the incident he experienced back pain. There was an investigation and CCTV was reviewed and interviews were conducted with named employees where it was alleged that the Complainant failed to follow fundamental aspects of bis job in breach of Health and Safety. There was a Disciplinary Hearing resulting in the decision to dismiss the Complainant. There was an appeal but the decision to dismiss was upheld.

SIPTU on behalf of the Complainant argued – it was not clear from the CCTV that the Complainant was guilty of a breach of Health and Safety – that any disciplinary sanction must be proportionate, that is the response must be measured and the punishment must fit the wrongdoing – the response of the Respondent was not proportionate to the wrongdoing and case law was advanced to support this argument. SIPTU also argued that it was the responsibility of the Adjudication Officer not to determine what sanction should be imposed but rather whether the reaction of the Respondent was reasonable and case law was advanced in this regard.

SIPTU argued that although the Complainant was in receipt of a live Final Written Warning that the Company could have achieved the objective sought, the preventing of breaches of health and safety, there is a clear principle established in employment law that the length of service of an employee must be considered in effecting a dismissal for the Employer to deemed to have applied the disciplinary procedure in a fair and reasonable manner.. SIPTU argued that in the circumstances of this case the Respondent’s decision to dismiss is severe and therefore disproportionate and in breach of the Act of 1977.

On the basis of the evidence, written submissions advanced at the Hearing, discussion and questioning by the Adjudication Officer I find as follows –

The Complainant was provided with a written statement of his terms and conditions of employment which included the Grievance and Disciplinary Procedures of the Company.

The Complainant did not deny the evidence of the Respondent at the Hearing that he had been involved in five previous personal safety incidents and that three of these past incidents resulted in personal injury to the Complainant and payments to him by the Respondent for same.

Both Parties confirmed that the Complainant had been issued with a verbal warning on 27th March 2015 following a reported accident on site. Both Parties also confirmed that the Complainant had been issued with a Final Written Warning on 23rd September 2015 to remain for a period of 12 months following another incident on 11th July 2015.

In the current complaint, the Respondent has a robust Disciplinary Policy incorporating Investigation Procedures and Disciplinary Procedures followed by an Appeals Procedure. The Investigation and Disciplinary Process was conducted in line with the agreed procedures of the Respondent Company. The Complainant was provided with the Investigation Report including CCTV footage and witness statements.

I find that the Complainant was afforded fair procedures and natural justice in relation to both the Company’s Procedures and also in line with S.I. 146/2000 which was approved by the then Minister, Ms Mary Harney on 26th May 2000.

Unfair Dismissal – Breaches of Health and Safety – Fair Procedures and natural justice applied in relation to the investigation, disciplinary process and the appeals process in accordance with the procedures of the Company and in accordance with S.I. 146/2000