Complainant

Respondent

Anonymised Parties

A Meat Plant Operative

Meat Plant Processor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00019276-001

18/05/2018

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

CA-00022427-001

04/10/2018

1.0 Introduction

The claimant, submits that he was unfairly dismissed by his former employer the Respondent, on 21 August 2018. The Respondent submits that the Claimant was dismissed for a deliberate failure to follow fundamental policies and procedures and engaging in behaviour that was likely to endanger his own safety or of that of a colleague. The Respondent submits this amounted to gross misconduct and as such, considering all matters, his employment was summarily terminated.

2.0       Company Background

2.1       . The Company’s meat products are sold to major supermarkets in Ireland, the UK and throughout Europe. SIPTU represents 50% of employees in the Company. There are no other unions represented in the Company.

3.0       Respondent Statement

3.1       The Claimant commenced employment with the respondent on 04 March 2003 and worked in the boning hall in the company premises . The claimant received and signed for a copy of contract and company union agreement including the disciplinary policy. Copy attached at Appendix 1.

3.2       On Saturday 28 July 2018, Mr SC the boning hall manager received a private message on Facebook from a Boning Hall employee, Mr.LMcG, stating that he had been injured at work on the previous day, Friday 27 July 2018. Mr LMcG sent several Facebook messages to Mr SC on both Saturday 28 and Sunday 29 July, not indicating exactly what had happened but indicating that his injury had been caused by a fellow employee in the Boning Hall. Copy attached at Appendix 2.

3.3       On Monday 30 July Mr SC gave a statement to the HR Manager indicating what had occurred over the weekend. Copy attached at Appendix 3. A further statement was taken from Mr.GM, First Aider, who was on duty on Friday 27 July and from Mr.LJ , the boning hall supervisor. Copy attached at Appendix 4.

3.4       On Wednesday 01 August , the claimant, made a statement indicating that he was the other party involved in the incident with Mr/LMcG.   The claimant indicated that he and Mr.LMcG ‘had words’ on Friday 27 July and he went to push his colleague away from him but as he was holding his knife in his hand, he had caused an injury to LMcG. “I leaned into him and put up my elbow and forearm to push him away, but I had my knife in my hand and whatever way he jumped back his hand hit my knife”. The claimant also submitted some Facebook messages between himself and L McG from the Friday evening of 27 July 2018 where LMcG indicated he was in hospital and had severed two tendons in his hand as a result of the incident. Copy attached at Appendix 5.

3.5       On 01 August the Respondent HR Manager took a statement from Mr.GM, First Aider, who indicated what treatment he had given Mr LMcG after the incident. Copy attached at Appendix 6.

3.6       On 02 August a statement had been taken from another General operative who is a relief Supervisor, Mr IB, who indicated that he had also received Facebook messages on Sunday 29 July and gave a copy of these messages to the HR manager. In this conversation Mr LMcG said “G stabbed my hand…. Accident. He went to punch me in the shoulder but had a knife in his hand. I went to block him, and he cut into me” Copy attached at Appendix 7.

3.7       On 03 August the HR manager met with the claimant and suspended him with full pay in completion pending the outcome of the investigation. Copy attached at Appendix 8.

3.8       On 03 August 2018, the HR Manager met with Mr.LMcG who stated that the claimant had “went to push him with his fist and he had put his hand up and his hand got cut in the process”.   He stated that he did not report the incident as he did not want to get the claimant into trouble. During his investigation he acceded to a photograph been taken of the cut. Copy attached at Appendix 9.

3.9       Further investigation meetings took place with other staff who were on duty in an around the facility at the time. Both Mr.W.D.G and Mr.RE indicated that they did not witness the incident. Copy attached at Appendix 10.

3.10     On 07 August a further investigation meeting was held with Mr.LMcG, where he indicated that the claimant had told him not to report the issue of the Friday 27 July as he Mr.LMcG might not pass the mandatory drugs and alcohol test. Mr L.McGsaid the claimant put doubt in his mind about reporting the incident although he knew they should have done so. Copy attached at Appendix 11.

3.11     On 08 August the HR Manager conducted a further investigation meeting with the claimant. When asked if he had pushed Mr L.McG on the shoulder with the knife in his hand and not as previously explained by raising his forearm and elbow to get him out of the way the claimant submitted that they were “the same thing really”.   When asked again why he didn’t report the incident the claimant stated “Well if he wasn’t going to report it then neither was I”. Copy attached at Appendix 12.

3.12     The investigation team interviewed other staff that had been in communication with Mr.LMcG on Friday 27 July to investigate whether they had witnessed a smell of alcohol from him. Witnesses Mr.P McN was unsure if he could smell alcohol and Mr.G.M. indicated that he could not smell alcohol from MrL.McG. Copy attached at Appendix 13.

3.13     On 10 August 2018, the claimant was invited to a disciplinary hearing in relation to the incident between himself and Mr.LMcG which occurred in the factory on Friday 27 July where it was alleged that he deliberately ignored safety rules and thereby endangered his own or another’s physical wellbeing and deliberately failed to comply with company policies and procedures by not reporting an accident. In this letter of invitation, the claimant was warned that the potential outcome of the disciplinary process could lead to disciplinary action up to and including his dismissal. The letter from the HR manager also indicated that he was entitled to be accompanied by a representative at the disciplinary hearing. Copy attached at Appendix 14.

3.14     Mr. McD, Production Manager, conducted the disciplinary hearing on 15 August 2018. The claimant declined the offer of representation at the hearing although he was asked both in the letter of invitation and at the commencement of the hearing if he sought representation. During the hearing the claimant stated that he didn’t report the accident as he knew “LMcG had drink in him”. The claimant said he stood over the contents of his own statement which had been given during the investigation. The claimant indicated that “whatever way he jumped my knife struck him. The knife was facing me”.   The claimant, when asked by Mr McD, accepted that the knife struck Mr LMcG hand when he put his hand up as the claimant went to push him out of the way. The claimant accepted that he had been trained in knife safety and said “Yes, I know I shouldn’t have done it”. Minutes of the disciplinary hearing attached at Appendix 15.

3.15     After due consideration Mr McD wrote to the claimant on 20 August indicating that he was being dismissed for failure to report an accident in a safety critical environment and deliberately ignoring safety rules and thereby endangering his own or another’s physical wellbeing.   As the dismissal was for gross misconduct no entitlement to notice arose. The claimant was afforded an opportunity to appeal his dismissal. Copy of letter od dismissal attached at Appendix 16.

3.16     On 21 August 2018 the Claimant submitted a letter of appeal to Mr LO, Group HR Manager and an appeal hearing was scheduled for 04 September at 9:30AM. Copy attached at Appendix 17.

3.17     On 03 September at 17:05 Mr O received an email from   SIPTU laying out the grounds of the claimant’s appeal to his dismissal. Copy attached at Appendix 18.

3.18     The appeal hearing took place on 04 September and the claimant was represented by Mr VH of SIPTU.

The key points of the claimant’s appeal were

·                    He did not deliberately intend to injure Mr LMcC and the matter should be reclassified as serious misconduct instead of gross misconduct.

·                     It was not the claimant’s responsibility to report the accident

·                    When the investigation commenced the claimant did not attempt to hide any issues.

A copy of the minutes of the appeal hearing attached at Appendix 19.

3.19     On 12 September Mr O wrote to the claimant with the outcome of the appeal hearing. In this letter, Mr O gave a detailed and considered response to the points raised during the claimant’s appeal. However, Mr O concluded that he had no choice but to uphold the decision to dismiss for deliberately failing to follow fundamental policies and procedures.   Mr O also expressed his firm belief that the claimant failed to take reasonable care to protect the safety, health and welfare of another employee by his act and omission to report. Copy of appeal outcome letter attached at Appendix 20.

3.20     The other participant in the accident, Mr LMcG, was also dismissed for similar reasons to the claimant.

3.21     The claimant made a complaint to the WRC under the Unfair Dismissals Act 1977 to 2015 alleging that he was unfairly dismissed.

4.0       Respondent position

4.1       There is no real dispute over the facts of the situation in this instance in that it is accepted that the claimant was involved in an incident with a colleague on the morning of Friday 27 July 2018 which led to the colleague receiving a knife wound which required medical attention. Subsequent to this serious incident the claimant failed to report the incident insisting that it was his colleague MrL.McG’s responsibility to do so. A zero tolerance to any type of horseplay or inappropriate behaviour in such a safety critical environment where sharp boning knives are used is completely understandable and a reasonable standard imposed by the respondent to ensure the Health and Safety of all staff. See attached a picture of a boning knife which has a 13cm blade at Appendix 21.

4.2       Because of the potentially dangerous and safety critical work environment all staff including the claimant are fully trained in all safety procedures including HSP003 Accident Reporting, and HSP004 Knife Skills Training Programme and Trimming Work SOP BH006 and understood that “Failure to follow safe operating procedures will be seen as a serious breach of safety and will result in disciplinary action being taken.” See copy attached at Appendix 22.

4.3       The claimant’s dismissal arose from two separate issues

·         Engaging in improper conduct or other behaviour likely to endanger his own safety, health and welfare at work or that of another person.   Although the claimant submitted that he did not intentionally injure his colleague Mr LMcG with a boning knife the very fact that he raised his arm to his colleague while in possession of this knife went against all knife training, common sense and health and safety regulations.

·         Failure to report a workplace accident. The claimant attempted to shift his responsibility in reporting the accident and position his actions as doing a favour for Mr LMcG in that he submitted that he felt his colleague would not pass the mandatory, with cause, drugs and alcohol testing. At the very least this did not exonerate the claimant from his duties to report the accident and at worst was a pure fabrication in order to shift the blame onto his colleague, the injured party, Mr LMcG.

4.4       The respondent refers to UD 187/90, Edmund Francis Creed v K.M.P. Co-op Society Ltd where “the Tribunal having considered all the evidence, is of the view that the respondent acted reasonably in all the circumstances and finds that the dismissal was not unfair.   In reaching this conclusion we had regard to the dangerous environment in which the claimant worked. All employees of the respondent were issued with safety equipment and knives were used in carrying out work in the plant.

We accept the claimant's evidence that he had not behaved aggressively but we find that his action caused risk of injury to another and to himself. We are satisfied that a thorough investigation was carried out by the respondent company and that the claimant was dismissed in accordance with procedures and conditions laid down in his contract of employment”.

4.5       The respondent correctly concluded that the claimant’s behaviour amounted to gross misconduct and even though he had extensive service his actions were of such a serious nature that any lesser disciplinary sanction would not have been appropriate.

4.6       The respondent respectfully submits that the complaint against it is therefore without merit and the claimant’s dismissal should not be deemed unfair as it was based solely on the conduct of the employee which falls within the scope of Section 6(4) of the Unfair Dismissals Act.

The Respondent reserves the right to adduce any further evidence and/or defences at forthcoming hearing.

Mr.McD gave evidence on behalf of the respondent in relation to the disciplinary hearing with the claimant.He asserted that both protagonists had claimed that the other party had drink taken on the day of the altercation.When questioned on why he didn’t report the matter the claimant had said that he did n,t want to get LMcG in trouble – he indicated he believed that there was collusion between the 2 individuals and the claimant had suggested that he would report it if LMcG was going to make a claim.He stated that he inferred from the claimant’s evidence that he may not have reported the accident at all.The witness said that even a near miss had to be reported – the whole point being to prevent it happening again.He considered dismissal as the appropriate sanction as it came down to trust and the trust was irretrievably broken down.Under cross examination it was put to the witness that the company’s procedures placed no onus on the claimant to report the accident and that other staff were better placed to report it – particularly given that the injured party had a glove on when the altercation occurred.The witness stated that he could not rely on the claimant having a motive for not reporting the incident . When it was put to the witness that the claimant had consumed no alcohol whatsoever, Mr.McD replied that the claimant was the cause of the accident.When asked if he accepted that the claimant wanted Mr.LMcG to report it , the witness replied that the claimant could have done it himself..The witness said that the supervisors did not know who caused the accident.The union asserted that it came down to the credibility of 2 parties and the claimant’s version of events was more credible.

It was put to the witness that the claimant’s actions were a reflex action to the hazard of Mr.LMcG , the witness responded that once you raise an arm , anything might happen.Mr.McD went to to say that the key issue for him was the claimant’s failure to report the incident.

Mr.O gave evidence of his conduct of the appeal process – he asserted that the claimant had a legal and moral responsibility to report the incident and did not do so and that the claimant had a moral and legal responsibility to report alcohol consumption.He said a near miss was reportable and that trust had broken down between the employer and the claimant.Mr.O stated that no one was tested for alcohol and that from experience the claimant should have known to report the accident and any alcohol issue.Under cross examination , Mr.O stated that the claimant knew he had injured Mr.LMcG and should have reported it irrespective of the other people who knew of the injury.It was put to Mr.O that given Mr.LMcG’s acknowledgement of drinking alcohol the previous day that Mr.O was drawing an equivalence between Mr.LMcG and the claimant – Mr.O responded that he did not draw an equivalence to anybody – he said if the claimant had come forward Mr.LMcG would have been tested .Mr.O acknowledged that the claimant’s actions were not a deliberate error but he insisted that the claimant did injure Mr.LMcG.It was put to Mr.O that actions are not as severe an offense when they are not deliberate and that the claimant’s conduct should have been classified as major as opposed to gross misconduct.Mr.O replied that the claimant deliberately ignored safety rules.It was contended by the union that the role of the first aider and the superviser were being ignored and that the claimant did not want Mr.LMcG to be sacked.

In summing up the respondent’s representative highlighted that the employees were working with potentially lethal weapons and a policy of zero tolerance was not trite in such circumstances.While the claimant’s evidence that he did not behave aggressively was accepted , his actions had caused an injury . The company had to prioritise Health & Safety.The case law and authorities focus on whether or not the employer acted reasonably and that given the circumstances as outlined at the hearing , the employer had acted reasonably and had no alternative but to dismiss the claimant .

Introduction

1.    Adjudication Officer, the case before you today concerns the dismissal of the claimant by his employer, on 21 August, 2018 and is referred under the Unfair Dismissals Acts.

2.    We submit that the complaint referred by the claimant under the Industrial Relations Act may be considered withdrawn as it has been rendered effectively moot by the Respondent’s subsequent dismissal of the Complainant prior to its Adjudication; the concerns raised in that complaint – in so far as they were relied upon in the subsequent dismissal – form part of the claim under the Unfair Dismissals Acts.

Background

1. The Respondent)         employs over 250 employees at their plant.
2. The claimant commenced employment at on 15 November 2002 and worked as General Operative (Boning Hall) until the date of his dismissal.
3. On 20 March 2018 the Respondent issued both a written warning and a final written warning to the claimant in respect of ‘absences’ in circumstances which the claimant considered unfair and contrary to agreed procedures. He subsequently referred the matter to the WRC for Adjudication. The circumstances of that process are set out at Appendix 3 with the cliamant’s outline at p. 10.
4. The workplace accident which gave rise to the claimant’s dismissal occurred on Friday, 27 July 2018. In his referral to the WRC under the Unfair Dismissals Acts The claimant describes the timeline of events as follows:
   1. A workplace accident occurred on 27th July 2018 where, while I was pushing a colleague away from me as he had alcohol taken and was making it impossible for me to do my work, my knife accidentally cut his hand.
   2. In the investigation into the incident which followed-on from this the Employer chose to hold me responsible for failing to report the incident on the day in question - even though I never saw the wound as the colleague and a First Aider had both gone to tend to it and reported to me later that it was nothing, 'just a nick'.
   3. As the employee affected continued to work for the rest of the day and that both he and the First Aider had more knowledge than I as to what type of wound (if any, as far as I knew at the time) had been sustained, they were far better placed than I to report the matter. The injured party reported the matter to the Bone Hall Manager on the next day (28th July), and confirmed the requirement of his filing a report on Sunday, 29th July.
   4. By 1 August an investigation had been initiated and when called to that investigation I cooperated fully throughout all stages, giving a fully corroborated and honest account from the outset. The employer unfairly held me responsible for 'deliberate' breach of fundamental policies and procedures, specifically with reference to failing to report the incident by the time I first spoke to them about it on Wednesday, 1 August, even though the matter had already been reported to the Bonehall Manager the previous Saturday, 28 July.
5. The Respondent conducted an investigation into the matter which commenced on Monday, 30 July 2018 and the claimant was first interviewed as part of that process on 1 August and he fully cooperated with the investigation. He was suspended from duties on 3 August. (Appendix 5, pp. 5, 6 and 12)
6. The Respondent invited the claimant to a disciplinary hearing in relation to the incident by letter dated 10 August 2018 in which they characterised his conduct as ‘deliberately ignoring safety rules…’ and a ‘deliberate failure to comply with Company policies and procedures…’ (Appendix 4, p. 1)
7. Following a disciplinary hearing on 15 August (at which the claimant elected not-to be represented), the Respondent dismissed him by letter dated 20 August. The reasons put forward for the dismissal by the Respondent – having taken his ‘work record’ into consideration - were that his ‘deliberate’ failure to follow fundamental policies constituted ‘gross misconduct’ and that his actions had ‘irreparably damaged the trust between you and the Company.’ (Appendix 4. Pp. 2 – 3)
8. The claimant appealed the decision to dismiss by letter dated 21 August and SIPTU submitted written grounds for appeal to the Respondent on 3 September. (Appendix 4, pp. 6 – 7)
9. The appeal was heard on 4 September by Mr.L.O. Group HR at the plant. Mr. O confirmed the previous decision in upholding the dismissal, rejecting the appeal, by letter dated 12 September 2018. (Appendix 4, pp. 8 – 9

Union case  

1. We submit that the claimant was unfairly dismissed on 21 August 2018, by his employer.
2. While it is acknowledged that the Respondent adhered to the various investigative/disciplinary steps in agreed procedures, we submit that the decision to dismiss the claimant for ‘gross misconduct’ was unreasonable, in all the facts and circumstances of the case, and is founded in a wholly unreasonable characterisation by the Respondent of the conduct complained-of, in the known context in which it actually occurred.
3. We submit that in holding that the claimant ‘deliberately’ failed to report the incident (in alleged breach of the ‘Employee Duties’ outlined in the Accident Reporting Policy’), the Respondent arbitrarily elects to assign a specific and singular duty to the claimant in circumstances where it was unfair and inappropriate to do so. Though this policy does not assign specific duties or timelines within which this duty is to be fulfilled, the claimant has been held – on pain of losing his livelihood after 16 years’ service – to have so failed in this obligation where the matter had been reported to the Boning Hall Supervisor the very next day. (Appendix 2, pp. 1 – 2)
4. It is further clear that the injury was known about at the time it occurred – there was a Supervisor present and the injured party was given first aid assistance – so to hold the claimant responsible for a ‘failure to report’ is irrational.
5. We refer to submissions made at appeal stage, particularly to point 1 in that submission. (Appendix 4, p. 6) Here we have pointed out that, in the absence any ‘deliberate’ intention on the claimant’s part, the incident describes conduct that would be more appropriately considered under the heading of category B, ‘Major Misconduct’ ‘Dismissal & Disciplinary Procedures for Misconduct.’ (Appendix 1, p. 7)
6. We submit that while the Respondent seems to accept that the claimant’s action in injuring his colleague was not intentional/deliberate, his failure to report (in the circumstances outlined above) was. It is our submission that this conclusion is not rational and therefore a dismissal on that basis does not fall within the band of reasonable responses of a reasonable employer in the specific circumstances.
7. At both disciplinary and appeal stages the Respondent states that it has taken the claimant’s ‘work record’ into consideration. We submit that it is only reasonable to conclude from this that part of the rationale applied in reaching the decision to dismiss was in consideration of the fact that, at the time, that the claimant was on a ‘Final Written Warning’ which was itself subject of referral to the WRC Adjudication service. To this extent we submit the correspondence record and points raised by the claimant in respect of that process be considered as relevant to the determination on the fairness or otherwise of the dismissal. (Appendix 3 & Appendix 2, pp. 12 – 16 ‘Procedure for dealing with absence from work.’)
8. Throughout the process the claimant has acknowledged that his conduct fell short of what should have been expected from him, given his years of service and unblemished safety record, and that a disciplinary sanction was clearly justified – he has consistently claimed, however, that the sanction was grossly disproportionate to any breach on his part.
9. We make these submissions with specific reference to Section 6(3) of the Unfair Dismissals Act 1977 as amended by Section 5(6) of the Unfair Dismissals Act 1993, which states: “In determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so —to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…”.

Loss and Mitigation

1. The claimant sought alternative employment from the date of dismissal. He even had an interview (October 2018) for work with another plant from the Group but determined that, as members of the HR staff in that Group had participated in the decision to dismiss him in the current case, he did not consider that any offer of employment could be taken-up.
2. The claimant was successful in securing alternative employment on 10 December 2018.
3. The claimant’s actual financial loss is estimated at €6,189 for the period. This is calculated based on his being employed from 10 December 2018 with his new employer (Appendix 6)

Summary

1. We submit that the claimant was unfairly dismissed by his employer. We submit that – in light of all the facts and circumstances of the case – the employer acted unreasonably in determining to dismiss the claimant for ‘gross misconduct’ in circumstances where conduct rising to that description (with reference to the Company’s own definitions), are not made out, this constituting dismissal contrary to the provisions of the Acts.
2. We submit that, in remedy of his unfair dismissal, the claimant be awarded compensation as provided for in the Acts.

Conclusion

1. We respectfully submit that the claim is well founded and request that you find in favour of our member’s position.

In his direct evidence the claimant asserted that the incident was an accident and not in any way deliberate.He was concerned for Mr.LMcG who had many personal challenges and the situation giving rise to his drinking – he asserted that this was not enough to loose his job.He could not understand how the issue of reporting was such a big issue for the company – he thought it was a matter for the First Aider to report the incident.He understood the First Aider was reporting it and recalled the First Aider reassuring him – not to worry that it was only a wee nick.The claimant said he had been cut before by someone else and was told by the first Aider to report it.The claimant stated he did not report the incident because he did not want to be responsible for Mr.LMcG loosing his job “ on top of everything else”.

Under cross examination the claimant confirmed acknowledgment of training and acknowledged that in hindsight he could have put the knife down as confirmed in the notes of his appeal hearing. It was put to the claimant that he knew from the text messages between himself and Mr.LMcG on Monday 22nd.July that the matter was serious as M.LMcG was in hospital and that the Boning Hall Manager was investigating the matter and that he should have reported the incident first thing on the Tuesday morning- the claimant confirmed that he had expressed regret at the disciplinary hearing for not reporting it.He confirmed that he was aware from the claimant that he had not been named .The claimant stated that the gloves used by the employees were meant to be cut proof but they were not and the glove tore when “ his hand came back towards my knife”.The claimant asserted that he did not report the incident because he thought the First Aider would report it .It was put to the claimant that he didn’t report it because Mr.L.McG didn’t want it reported and he did not want him to loose his job.The claimant indicated he had not received training since 2003 – this was contradicted by the respondent’s representative who undertook to furnish the WRC with up to date training records as well as SOP’s for First Aiders.

In summing up the claimant’s representative   said that it was unfair to hold the claimant solely responsible for the non reporting of the incident and that the sanction of dismissal was disproportionate in such circumstances.Compelling reasons had been put forward as to why the injured party should have reported the incident.It was argued that while no report was made on the first day , the incident had been reported to the Boning Hall Manager on the second day and the claimant gave a full account of the incident in the course of the investigation.It was submitted that assigning blameworthiness solely to the claimant was unfair .

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.It has been acknowledged by the union that there were no procedural deficits on the part of the employer in processing the claimant’s dismissal – ultimately the union is contending that the sanction of dismissal was disproportionate .Having considered all of the evidence and the authorities relied upon and having taken into account the respondent’s acknowledgement that the claimant’s behaviour was not deliberately aggressive and given the claimant’s prolonged service with the respondent , I accept the union’s contention that the sanction of dismissal was disproportionate in all of the circumstances. Accordingly, I am upholding the complaint of unfair dismissal.However ,   in light of the claimant’s acknowledgement that in hindsight he could have put the knife down and given his failure to report the incident , I have concluded that the claimant contributed significantly to his own dismissal and consequently I am limiting the award of compensation to €2,500.