Complainant

Respondent

Anonymised Parties

A Kitchen Assistant

A Catering Business

Representatives

Deirdre Canty, SIPTU

Aishling McDevitt, 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-00027962-001

25/04/2019

This case arose as a claim for Unfair Dismissal and is contested by the Respondent.

Both parties were represented. The Complainant by SIPTU and the Respondent by IBEC. Both parties made helpful written submissions.

In the aftermath of the hearing, the complainant sent in a note from the complainant’s medical officer and a handwritten note dated 9 September (4 days post hearing) submitting that the Respondent had knowledge by letter of the complainant’s dissatisfaction with his Supervisor. The author of this note had not attended the hearing. The Union had also attached a statement ascribed to the complainant on the stated impact of his dismissal on his life.

There was a delay in furnishing this document to the Respondent and it was communicated on 16 January but did not illicit a response.

The Union subsequently notified the WRC that the Supervisor with whom the complainant acknowledged compatibility issues had returned to work. I cannot accept this document at this late stage.

The Respondent operates a contracted services company, which provides a range of services on client sites. The Respondent rejected the claim for unfair dismissal.

The Complainant was employed as a Food Services Assistant. The Respondent outlined that the complainant had been dismissed on the grounds of gross misconduct in accordance with Section 6(4) (b) of the Unfair Dismissal legislation.

The Complainant had received Health and Safety training recorded during his work.

The Respondent representative outline that the complainant had an active final written warning on his employment file dated March 2018. This referred to a breach of company policy and had not been appealed. In June 2018, the Respondent, through his line Manager had received a verbal counselling in respect of the importance of identification of chemical products by label.

The Respondent also outlined that there had been some difficulties between the complainant and another employee in 2017, where the complainant was relocated on a temporary basis, but this person had not been present at work for over a year.

The circumstances which led directly to the current case evolved from an October 2018 safety inspection undertaken by the Complainants Line Manager, Ms A.

The complainant was approached by Ms A and asked whether he had any bottles in the “wash up “area that were not correctly labelled? The Complainant state that he did not. However, Ms A subsequently came across a bottle which contained clear liquid which had a strong chemical smell at the sink. The Complainant confirmed that this was in fact his bottle of chemical solution which he had labelled “Bleach, do not touch “.

As the complainant had previously been involved in a similar issue, the respondent decided to undertake an investigation in accordance with the Disciplinary procedure. The complainant was invited to attend to put forward his response and permitted representation. He was provided with

1 Company Disciplinary Procedure

2 Chemical training Record

3 Health and Safety Training

4 Record of Verbal counselling

5 A Photograph of the Spray Bottle found by Ms A.

Ms A chaired the investigation.

“I am writing to confirm the commencement of an investigation in relation to your alleged misconduct, specifically the incorrect use and labelling of the cleaning chemical X that occurred on Monday, 22 October …. Please be advised that this matter is being treated as an allegation of gross misconduct “

The Respondent also offered a reasonable adjustment to enable the complainant to participate fully in the process, a person to assist him with the reading of meeting notes etc.

The Complainant engaged with the Investigation alone and confirmed that he had placed a hand-written label on the bottle. This was a departure from an earlier undertaking given by him to “using correctly labelled bottles in the future “

The Investigation heard from 8 of the complainants’ colleagues, some knew of the bottle of X and others believed that he had not retained it post an earlier Health and Safety Audit.

The Investigation concluded that the allegations against the complainant were upheld. An Investigation Report was furnished to the Complainant on 20 December 2018. The Report recommended Disciplinary action in the face of Gross Misconduct.

The Complainant was invited to a Disciplinary hearing set down for February 1, 2019. He declined representation. The Complainant submitted that he had placed “do not use “on the bottle as a deterrent to others. He identified that he ha not had a pump at his disposal at the time of the 22 October incident.

The Disciplinary Hearing was conducted by Mr B, the Contracts Manager who had regard for an earlier application of final written warning which flagged that “ any further disciplinary issues could lead to his dismissal “ He also had regard for a verbal counselling after this in similar circumstances to the issue on Bottle X .The Complainant was dismissed by way of letter dated February 19, 2019 and received payment in lieu of his four week notice period .

This was appealed on 27 February 2019. the Appeal was conducted on March 20, 2019, by Mr B, Client Relationship manager. He was represented by a Full Time Official on this occasion. The Respondent upheld the decision to dismiss.

The Respondent submitted that the complainant had a live final written warning on his file at the time of the detection of the Bottle of Chemical X. He had also been counselled regarding “labelling of a bottle “His undertakings not to repeat this breach of health and safety had been abandoned by him. This constituted substantial grounds and justified his dismissal. the Respondent could not be confident that the complainant would not deviate from Policy again.

The Respondent submitted that the complainant had high standards at work and the decision to dismiss him was a difficult one and “not one taken lightly “by them. the Respondent was troubled by the complainant’s disregard for health and safety procedures in the workplace.

The Respondent further submitted that Looney and Looney UD843/1984 applied in the case and submitted that the respondent’s sanction of dismissal was a reasonable response to the circumstances presented. The Complainant had been afforded fair procedures and natural justice.

The Respondent sought that the case be dismissed.

Evidence of Ms C, Environmental Health and Safety

Ms C gave evidence on the nature of Chemical X. She referred to the Chemical Training Sheet. She explained that a safety walk consisted of a site walk with the objective of hazard identification for which controls were then put in place.

She explained that Chemical X is a corrosive if presented neat and was stored in a 5-litre drum. 30 mls of product is to be combined with 10 litres of water and administered via a separate  Pelican pump.

It is used to remove tannin from cups.

In this case, Ms C submitted that the label had been over written as the 1st label had stated that the product was non-corrosive.

Ms C submitted that she had not been aware that the complainant had literacy issues. She had not filed a report of her findings and she was not aware of any controls put in place because of this issue.

During cross examination, Ms C confirmed that if Chemical X was diluted correctly, it was not harmful. She negated any suggestion that it was accurate to apply an eye rather than scientific measurement. She was not aware that the practice of using the bottle was known by a previous manager.

Ms C reaffirmed that safety glasses and gloves were the correct PPE for handling Chemical X. There was no specific training in Chemical X on site but deferred to the “Chemical folder of safety Data sheets “. Ms C clarified that the pump had no cost implications.

Evidence of Ms A, Human Resource Advisor (former line manager)

Ms A had previously worked as a Catering manager and had been the complainants line manager. An annual safeguarding audit undertaken in June 2018 showed several “amber “notifications which as Site Manager were her duty to follow up. The Complainant now works in human resources.

Earlier in 2018, an unlabelled bottle of Chemical X showed up at audit. Company regulations require that labels are applied to every approved chemical. The Complainant who was working with the unlabelled bottle assured that he would follow set procedures and it would not happen again.

In October 2018, Ms A undertook a safety walk as part of her 4 times weekly safety walks. She approached the wash up area and asked the complainant if he had any unlabelled bottles? to which he answered no.

Ms A noticed a bottle with some liquid. On examination, it sprayed her hand. She had concerns and decided to commence an investigation in accordance with the Disciplinary procedure.

The Complainant told her that everyone knew about the bottle. She had no concerns about the complainants work ethic but did have concerns about an incorrect label applied to a bottle and the tracking of a misuse of chemicals.

Ms A established that the complainant had disregarded his training in chemicals and lacked insight or remorse into what had occurred. There was a residue in the bottle, which had a loose lid. The contents were not analysed

During cross examination, Ms A confirmed that 30mls to 100mls of fluid remained in the bottle. She had not been hurt by the spill. She recalled a strong odour from the product which she inhaled but did not require medical attention. After the June safety audit there was a red alert for any bottles in the work area.

Ms A confirmed that she had approached Mr F, Head Chef to check all equipment. Ms A confirmed that she had not asked Mr F if pumps were in stock.

Ms A confirmed that the complainant was permitted forward any witnesses he chose and denied that he had been over ruled. He had not amended the meeting notes. The matter of a vacuum in available pumps was not raised.

Ms A found that trust had eroded between the complainant and the business because of his behaviour. Someone should not have to be able to guess the contents of a bottle in a regulated setting. This constituted an unacceptable risk.

Ms A was aware of the complainant’s literacy problems. She confirmed that the complainant had not wanted to “name names “in the context of the investigation.

Evidence of Mr B, Disciplinary Hearing and Contracts Manager

Mr B was responsible for 4 client sites and c. 70 employees. Mr B confirmed that he had managed the Disciplinary hearing, where the complainant had chosen to present his own case, without pro-offered representation. In preparation, Mr B considered the Investigation Report.

He listened to and considered the complainants responses to the incorrect use of chemicals. Handwritten labels were not part of company policy.

Mr B was mindful that the complainant had accepted verbal counselling in June 2018, and he had not asked for a pump on October 22. He did not hear any submission on mitigation from the complainant. He offered to read back the meeting notes for the complainant.

Mr B confirmed that “progressive sanctioning “was required considering earlier final written warning and verbal counselling. The Complainant had not complied with the company rules.

Mr B told the hearing that he applied a procedural dismissal in respect of a continued breach of human resource procedures. During cross examination, Mr B confirmed that he was not aware of the circumstances surrounding the application of the Final Written warning.

He was aware that the complainant was a good worker. He had given regard to the impact a dismissal would have on the complainant but judged against the welfare of the entire staff, he found the actions of the complainant to fall short of what the company required of him.

When asked if he had considered a lesser sanction than dismissal? he reflected that he had a duty of care to all employees and the complainant had placed himself and others at risk. The matter was quite serious. Health and Safety was “front and centre “of the business and the complainant had refused to carry out tasks which he had previously given an undertaking to follow through on.

Mr B confirmed that he was aware of the animosity between the complainant and an employee with whom he had worked previously, but this had no bearing or influence on his decision  

Evidence of Mr E, Appeals manager,

Mr E confirmed that Mr B reported to him and he held responsibility for 480 staff. He had extensive experience of Grievance a Disciplinary procedures over his career. He confirmed that the complainant chose representation by a full time official to support him at appeal of the decision taken to dismiss him. He was aware that the complainant had literacy problems.

He received a letter of appeal from the Union Shop steward dated 27 february,2019. The Appeal lasted over 2 hrs and the complainant was invited to set out his basis for appeal. Mr E allowed an expansion on the grounds of appeal from the earlier 27 February 2019.

He recalled that his decision had been one of the toughest he had to make as he balanced it with the complainants very strong work ethic. Mr E determined the matter as very serious and the complainants practice exposed the company to risk. He contended that the complainant had been told that he had erred in several areas but disregarded this direction along with his training.

He outlined his reasoning for upholding the decision to dismiss the complainant. He had not been influenced by the presence of the final written warning. He could not trust the complainant to return to the business.

During cross examination, Mr E confirmed that he didn’t recall what led to the complainants final written warning. He focussed on the Safeguarding Audit, the Verbal Counselling and the bottle found on October 22.

He confirmed that the matter was too serious for him to consider another sanction.

In conclusion, The Respondent argued that the complainant had not acted in accordance with the Health and Safety rules. He had alternatives in the form of a Pump an should have desisted from usage of an incorrectly labelled bottle.

The Company had lost confidence in the complainant following the framework of Disciplinary actions applied to him in 2018. The Complainant had not raised a grievance regarding his Supervisor, had he raised such a grievance, he would have been heard.

The sanction of dismissal was proportionate, and the company could not countenance a remedy of re-instatement and cited it as wholly inappropriate. They could not have any certainty on what the complainant would do in the future. While acknowledging his work ethic and standards when balance against the risk, the company believed they were left with no choice but to dismiss the complainant.

The Union outlined the case on behalf of the complainant. The Complainant had worked for almost 6 years in his capacity as Kitchen/Wash Up Attendant with the Respondent business. This job was important to him and he worked very hard.

On 22 October 2018, the Complainants line manager, Ms A asked him whether he was using a “bottle to clean up “? He said no, to which she replied “Well, if you are, get rid of it now “

Ms A later returned to the kitchen and retrieved a plastic bottle labelled “Bleach, Do Not Touch” from a shelf behind the Dish washer. The Complainant confirmed that this was his bottle used for measuring the chemical product X.

Two days later, Ms A told the complainant that she was holding an investigation into the matter as the bottle should not be used for this purpose.

The Complainant participated in an Investigation and found guilty of allegations made against him which amounted to Gross Misconduct. He attended a Disciplinary hearing on February 1, 2019 and dismissal followed by way of letter dated 19 February.

The Complainant submitted an appeal which was heard on 20 March 2019 and the original decision to dismiss was upheld.

The Union submitted that Chemical X was universally available on the site and used to steep and soak crockery. It is stored in a large drum and must be diluted with water.

It was the complainant’s case that this drum is normally accompanied by a pump to distribute the measure, however, as no pump was available at that time, the complainant improvised by using the bottle to decant the measurement he required for his work on the Carousels. The 750 ml bottle was labelled by the complainant and was for his personal use only. He stored it out of the way, when not in use.

The Union on behalf of the complainant contended that he had not used the “liquid in the spray bottle as accused “. They pointed to an inconsistency in the levying of the charges against the complainant:

21 December 2018:

Gross Misconduct. Breach of Health and Safety Training Policy

And

19 February on Dismissal:

Gross misconduct specifically a serious breach of procedure by incorrect use of chemicals as well as incorrect labelling that occurred on 22 October at the site.

The Complainant was not suspended, and the complainant attended work from October 22 until the date of his dismissal except for a short period of sick leave. He was notified of his dismissal after he went home from work on 19 February. The Union went on submit that on the day prior to his dismissal, he was commended at work by Ms A and Mr E.

The Union challenge the progressive nature of the disciplinary sanction relied on by the respondent as the final written warning had issued in respect of a breach of confidentiality following complaints levied against him by a former supervisor. The Complainant had experienced a very difficult time in contesting complaints and had a loose moment where he had disclosed details of one of the complaints to a colleague. Overall, the complainants were unfounded, but subsequently, he had tried to make a complaint against the Supervisor but was not heard on this.

The Union contended that it was the inter party incompatibility between the complainant and his Supervisor which was the real reason grounding his dismissal. He has suffered since his dismissal and seeking work proved difficult as he has literacy problems. The Complainant sought the remedy of re-engagement /re-instatement.

The Union asked for consideration of proportionality in the decision taken to dismiss and cited Tesco Ireland and Gannon UD2114/2010 and Bigaignon V Powerteam Electrical Services ltd UD 939/2010

They also applied Frizelle V New Ross Credit Union [1997] IEHC 137

In Summary, the Union submitted that the investigation conducted in the case was flawed. the alleged incident was misconstrued, and the decision taken to dismiss disproportionate and unfair.

Evidence of the Complainant.

The Complainant gave an outline of the variety of his work supporting the catering function. He qualified this by stating that he had defined literacy issues which meant that he did not read or write well. He submitted that he loved his job and felt that he was well regarded for his contribution.

He recalled Ms A approaching him on 22 October in relation to “a bottle “He said that she told him that if he had a bottle to get rid of it. He did have a bottle which he kept as a measurement jug for chemical X. He proceeded to empty the bottle and washed and cleaned it. He was unsure where he had sourced the label.

Shortly afterwards, Ms A returned and retrieved this bottle from behind the dishwasher. There was a drain of water remaining.

He attended the investigation with a certain curiosity and did not take a representative. He explained there that the bottle was for measurement purposes in the absence of a pump. It was not used as a spray. The pumps had been delayed in a mixed-up order. he explained how Chemical X was used and the bottle was for his personal use only and had not caused him harm.

He maintained that staff in the kitchen knew about the bottle but declined to name them. One member of staff had approached him 3-4 days before the 22 Nd October and he contended that she may well have reported him.

He was very disappointed to lose his job and sought to explain that the application of Chemical X in the bottle was to address areas which needed intensified cleaning and he had been unsupported in this.

He drew a connection between losing his job and the persistent complaints of his supervisor. He did not believe that he admitted to the charges. He had tried to put a context on his use of the bottle and why he labelled it.

He explained that he had been depressed because of his experience of dismissal.

During cross examination, the complainant confirmed that he was au fait with the use of chemicals in the company practice manual. He reflected that he had probably left people down and apologised.

He reaffirmed his high work standards and stressed that the areas had high cleaning needs. He denied that pumps were available to use. He recalled having a conversation with a fellow worker on this topic before any of the events of October 22 happened. He submitted that pumps were ordered through Chef.

He denied that Ms C had vision of the concentrate solution. He had undertaken his work with pumps over the month before his dismissal. He reinforced that a former worker had followed up his use of a disinfectant product which differed from Chemical X. The latter was not used in the kitchen or on food.

He had labelled the bottle correctly and it reflected the correct substance.

When questioned on his decision to go solo at the Disciplinary procedures, he confirmed that he could not read minutes, but they were read back to him. He was strained during the procedures and had enough of it all. He did not admit to serious breaches of any policy. He had labelled the bottle correctly.

The Complainant confirmed that he had recently received a carers allowance for family support. He had made 7 applications for work.

In conclusion, the Union contended that the outcome of the early investigation provided an inevitable finding that the complainant was guilty. The Union argued that the dismissal decision maker had no idea of the content of the final written warning and lesser sanctions were not considered at dismissal or on appeal. The issue of exploring whether the complainant’s submission of lack of availability of the pump was not tested.

The Union submitted that the complainant had behaved honestly from the outset an there was no attempt to disguise or hide “the bottle”. The Company had not suffered consequences by the complainant’s actions, but it had left a huge impact on the complainant.

The matter could have been safely addressed by application of a lesser sanction.

I have carefully considered the oral and written presentations by the parties. I have also reviewed the Company HR Policy Document HR 7.2 on Disciplinary Policy and SI 146/2000 the Code of Practice on Disciplinary Procedures.

The Complainant was dismissed after a period of almost 6 years of employment, during which time his employment had transferred.

The Respondent     focussed on the breakdown in trust which was identified following the detection of” the incorrect use and labelling of chemical X “as justification of dismissal. They asked that the sequential nature of the loop of Disciplinary actions be considered in the case. They described the dismissal as a procedural step in this process and relied on Section 6(4)(b) of the Act on conduct.

The Union, on behalf of the complainant focussed on the disproportionate nature of the dismissal in the face of lesser sanctions being available.

There are several early observations which I would like to make in this case. It was undisputed that the complainant was a hard and successful worker at the business. On detection of the labelled bottle on October 22, 2018, the complainant agreed to attend the investigation but continued to undertake the same job in the same location.

I accept that he changed his practice and used the pump in the latter stages of his tenure, however, he was not placed under any protective measures or more importantly was not suspended to permit an investigation. I have taken from this that the respondent was not struck by the immediate risk of his continuance at work at that point. This is an important consideration for later.

Throughout this case, I was struck by an alleged sub plot of historically unresolved issues between the complainant and his Supervisor, who I understood was on sick leave at the time of the hearing. This arose from the complainant side exclusively and was denied by the Respondent.

I was also met by an undisputed Final Written warning for issues that had apparently arisen from these residual issues and the complainants reported strain in that regard. This was not appealed and was live by October 22, 2018. Joining this was a clear record of a follow up to a verbal counselling dated 27 June 2018 for “placing chemical X in an unlabelled bottle “.

In Section 6(1) of the Unfair Dismissals Act, provides that an employee shall be deemed to have been unfairly dismissed unless having regard to all the circumstances there were substantial grounds justifying that dismissal.

Section 6(7) goes on to outline that without prejudice to S. 6(1) in determining if a dismissal is an unfair dismissal, regard may be had if deemed appropriate by the Adjudicator to

S .6(7)(a) the reasonableness or otherwise of the conduct (act or omission) of the employer in relation to the dismissal in addition to any compliance or failure to comply with any code of practice relating to procedures regarding dismissal approved by the Minister.

Section 6(4) on which the respondent relies allows a consideration for the conduct of the employee to amount to an exclusion of the application of Section 6(1) of the Act. An Employers honest belief will matter in this regard. The burden of proof in this case rests with the Respondent.

In application of Noritake (Irl) ltd v Kenna UD 88/1983 in Abdullah V Tesco Ireland plc UD 1034/2014, the EAT held:

What is required of the reasonable employer is to show that he had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate.

I have a responsibility to consider all the facts in the case. I accept the Respondent premise that it is not for me to say whether the complainant was right or wrong or whether I can walk in their shoes, I accept that I am bound to consider the facts against what a reasonable employer may have done within the Lord Denning constructed “band of reasonableness “.

Firstly, I agree that a disparity existed between the objective of the verbal counselling in June 2018 and the event as detected on October 22, 2018. On the first occasion, it was alleged that the complainant had placed a corrosive chemical in an unlabelled container. On the second occasion, “alleged misconduct, specifically the incorrect use and labelling of chemical X “. There are differences in both observations.

I have reviewed the complainant’s records of chemical training and the respondent on site training manual which identified “how to use chemicals safely “I understand that the Respondent had a high expectation that chemicals would be properly identified after June 2018. However, I could not identify how they undertook an empathetic plan to achieve this with the complainant.

The Respondent was divided on just who was aware of the complainants long standing literacy problems. I found that the duty of care from the respondent to the complainant in this regard has not been sufficiently demonstrated. His job was at the ancillary part of the business and I find that he needed clearer support and direction in terms of labels and signage in the aftermath of the safety audit earlier in 2018.

I also noted that the complainant was reticent when I asked him where he secured the label detected on October 22?. He seems to have adopted an insular approach to this question. It was not lost on me that the complainant had clearly met personal challenges regarding his level of literacy at work. It was clear that he had achieved success operationally and that constitutes a triumph. However, it is also clear to me that the Respondents obligations to regulations, audit and rules challenged him and he may have engaged in a defensive practice to seek to meet those standards.

Overall, I found that an enhanced sensitivity was required in this area. I say this as the complainant’s representative alluded to the complainant being surrounded by “reams of paper at home “Perhaps consideration could have been given to a more orally recorded Disciplinary process. I appreciate that notes were read out at the end of the fora; however, I would have liked to have seen a more supportive framework.

This brings me to the investigation in the case, a forum with which I have had the most difficulty. I could not establish any management intervention in the immediate wake of the detection of the bottle on October 22. I found this unusual. I also found the lack of reportage of the industrial spill by Ms A to be unusual. This seemed to me at least to be at variance with the Practice sheet on chemicals. Coming so quickly in the wake of the vacuum in intervention, I found the investigation to be an unusual milestone in the case.

Misconduct is defined in the respondent policy as “Misconduct is when an employee is aware of their role and responsibilities yet chooses to ignore them.”

An informal approach is advocated, and the company reserved the right to move directly to the formal section of the disciplinary process. The Disciplinary Policy permits a period of suspension “where the company reasonably considers it necessary “in cases which appear to involve gross misconduct. I found a certain inconsistency in how the respondent immediately categorised the Oct 22 incident as an “allegation of gross misconduct “and yet did advance a rationale for allowing the complainant to continue in his same role and function, without any apparent protective measures.

I appreciate that the Respondent, did however, hold a high level of disquiet regarding the complainants “innovations “and “short cuts” taken at work. While he did confirm that he had used the “ bottle “ on October 22, it appears from the evidence at hearing and the meeting notes that he attempted to place a certain context and background to the practice .I am not certain that he was heard on those submissions as the respondents understandable concern for commercial reputation with the client featured strongly in the investigation .

However, I found that he had not prepared for the investigation and addressed this forum in an overly casual and almost non-chalet fashion. He failed to appreciate the gravity of the situation and did not articulate well in his own case. I can understand that he was slightly “battle weary” in his dealings with this management team considering the historical staff relations issues involving his Supervisor. However, I did find he acted completely to his detriment in not availing of the pro-offered Representation at this important juncture. It would have been of benefit for both parties to have this objective presence at this early stage.

The Investigator reflected that the counselling in June had reflected

“dangerous to put incorrect labels on bottles and incorrect chemicals in bottles that were labelled “

This was not reflected in the record of June 2018. The behaviour at that point reflected placing chemical X in an unlabelled spray bottle.

In Kilsaran Concrete ltd v Vitalie Vet [2016] ELR 237, the Labour Court decried any attempt to augment allegations during a disciplinary process. By the various permutations of allegations which were edited for the investigation, I found some augmentation in the presentation of the allegations in this case.

The Complainant queried what witnesses were being introduced by the Respondent? He received a nonspecific and generic response .He did not put witnesses forward in his own case .The witnesses were asked to address “an allegation of misconduct where it is alleged he placed a chemical in a bottle with incorrect label on it “ The Eight witnesses put forward by the company were equally divided in those who were aware that the complainant placed a bottle containing chemical X as those who were not .

Yet, the investigation concluded that he had placed a corrosive chemical in a container that was not labelled and surplanted by the complainant’s own label.

The Investigation concluded in a finding of gross misconduct. I listened carefully to the witness who led the investigation and had difficulty in understanding how she arrived at this finding. After all, Ms A, herself as the complainant’s line manager had detected the variance from best practice attributable to the complainant. She had not made a timely intervention outside announcing an investigation some days later. She was not interviewed regarding her role. The Investigation report reflected that the most senior person in the kitchen, the chef had no awareness of the bottle. This was a key finding and one which required further probing in terms of management of the complainant.

I appreciate that the label of “bleach “was not 100% at one with chemical X, or indeed the base label of disinfectant and she had concerns on this. However, for me, at least, a finding of gross misconduct not linked to a specified term of reference warranted further probing. In addition, as the complainants line Manager, I found the move to formal investigation in the absence of any face to face analysis of her detection to be incongruent.

In Vita Cortex ltd v Dourellan 1031/1992, the EAT directed:

A reasonable investigation requires more than merely seeking to confirm suspicions, it must include an inquiry into all the surrounding circumstances and interviewing all relevant employees on these matters

I found that the investigation did not explore the surrounding circumstances referred to by the complainant. He attested that the area which needed intensive cleaning, warranted the approach adopted by application of chemical X in the manner he applied it. This submission was not followed up on or investigated, yet it seems to have been advanced by the complainant in mitigation.

In a UK Court of Appeal case Adesokan V Sainsburys Supermarkets ltd [2017] EWCA CIV 22, CA, a General Manager of 26 years employment was charged with leading out a feedback assessment process. The Integrity of the process was undermined and the complainant in the case was found to have failed to “take adequate steps and the negligent dereliction of duty was so grave and weighty as to amount to justification for summary dismissal “.

Special emphasis was made to the evaluation of primary facts and exercise of judgement necessary in arriving at a finding of gross misconduct.

“A failure to act, without any intention to contradict or undermine the employer’s policy should not readily be found to be such a grave act of misconduct as to justify summary dismissal.”

However, the Court considered the level of responsibility and tenure of the complainant in the case and upheld the decision to dismiss.

I accept that the complainant was not placed as highly in the organisational chart as Mr Adesokan, however, I identified a rush to identify the misconduct as gross misconduct without an adequate an objective examination of the facts and exercise of judgement.

In the instant case, the complainant was an acknowledged hard worker, who worked up to the day of dismissal apart from a period of sick leave during the disciplinary process. In considering the evidence of the respondent, I identified a cultural ideation that once a final written warning was placed on file that another serious transgression would amount to an automatic progressive sanction. This synergy in thought goes too far in my view.

A person’s job is their livelihood and is an integral part of who they are. In the complainant’s case, he clearly received a high level of adulation for his cleaning outcomes, however, this was in someway clouded by his methods of achieving those outcomes by “cutting corners” and “innovations “The Respondent presides over a highly regulated workplace and there was a collision in both objectives in this case.

A dismissal is a very final severing of a work relationship and needs to be addressed extremely cautiously before execution.

Justice Noonan in James Reilly and Bank of Ireland {2015] IEHC 241 commented that whether conduct is gross misconduct or simple misconduct is a qualitative judgement. He went on to say regarding the offensive emails at the heart of the case, that no evidence had been provided or anyone offended by the emails, or the employer suffered any loss or damage. In observing that dismissal had a catastrophic impact on  Mr Reilly, he cautioned that where breach of a policy could lead to dismissal, employees should be reminded of this, especially where an employer intends to adopt a zero-tolerance position.

In the instant case, the complainant had been placed on notice post verbal counselling in June 2018 that failure to comply with health and safety policy and contradiction to training could result in disciplinary action.

As I have already stated, it doesn’t fall to me to decide whether the complainant was right or wrong in his actions. I must consider whether the respondent acted within the band of what a reasonable employer may have done.

In this entire case, I found a lack of regard for the complainant as an individual. Part of the reason for this was the complainant’s own underrepresentation of how he was really thinking at investigation and subsequent hearings. He did not submit a plea for retention of his job as I identified that he had not expected to lose it. This showed a certain disregard for the forewarning of this in respondent communique. I did, however, identify that he was weary from his perceptions of a repeated procedural framework involving his Supervisor. The Respondent did not confirm or share that view.

I accept that the Respondent offered him a platform to speak, however, I am not satisfied that he was judged on the unique individual he was i.e. An employee who had worked against a literacy impediment in a highly regulated workforce. He had an undisputed high level of performance which was unbroken apart from sick leave during the disciplinary framework. I would liked to have seen a more inclusive approach where all relevant circumstances were considered.

In James mc Evoy and Avery Dennison 1992 ELR172, the EAT pointed out that health problems should have been considered in establishing whether they presented as a likely factor in the occurrence of the incident at the heart of the case.

This was successfully applied in a recent Labour Court case of Rose Kinsella and Tesco Ireland ltd UDD 1924, where the complainant had a diagnosis of depression and the Court highlighted that this condition should have been explored as to whether it could have been a likely factor in the occurrence of several transactional errors?

For my part, I found that the Respondent had serious concerns regarding the complainants ongoing compliance with the rules around storage, measurement and administration of Chemical X. I also found that the complainant’s propensity to do things “his way “had a challenging impact in a highly regulated workplace. But I cannot accept that his actions on October 22, 2018 amounted to an act of gross misconduct. I also have enormous difficulties with the Value judgements expressed by the respondent during the investigation.

I found that the respondent misinterprets the currency of the “final written warning “and had an understanding that the October transgression could only be managed through an enhanced disciplinary outcome of dismissal. It was precisely the back drop of final written warning which ought to have been carefully reviewed by the Respondent prior to actioning a dismissal.

I found the Decision makers distance from the details of this file to be unhelpful. I also identified that the complainant had not appreciated the gravity of his situation. I note that the complainant was properly on notice of a threat of dismissal from March 2018. However, I found that he associated this with an entirely different set of circumstances and did not appreciate that he was on a “last warning “. I could not identify just where the complainant was placed on notice that any further transgression with chemicals would lead to his dismissal. A zero-tolerance policy was not apparent. I also identified a failure to place any weighting on the complainants work from October 22 to the day of his dismissal.

The Respondent did not have enough regard for the complainants underlying literacy presentation and where it placed him in a highly regulated workforce and in the market place.

I found that the investigation was precipitous and suffered from the complainants own under par performance.

Lastly, I found that the Respondent had not exercised a duty of care to properly consider the impact a dismissal would have on the complainant. Reilly applied.

In all the circumstances I found that the action of dismissal was disproportionate to the action complained of. Notwithstanding the prior existence of a Final Written Warning of March 2018, and the verbal counselling in June 2018, options available to a reasonable employer had not been exhausted.

As I view the facts through the prism of what I would expect from a reasonable employer in possession of the facts, I must conclude that the situation warranted more empathy and prompt corrective management rather than the finality of dismissal. I also need to balance this by indicating that the complainant did not demonstrate a proper regard for the process. He adopted an overly insular approach which did not help his case.

I have not seen a consideration of the circumstances surrounding the complainants sick leave during the disciplinary process.

Therefore, I conclude that the Employer cannot rely on Section 6(4) (b) of the Act. I find that the respondent has not proved substantial grounds warranting dismissal and I have found that respondent veered far outside the proverbial band of reasonableness in how the dismissal was conducted. The complainant also played a part in his own demise.

The claim is well founded, the complainant was unfairly dismissed.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complaint of unfair dismissal is well founded. I have considered options open to me in this regard.

Time has moved on in this case. The Complainant has not worked since his dismissal and has since taken up a family support role. I have had regard for the Unions submissions on the complainants limited chances of finding work.

I have considered the submissions on both parties on the remedies open to me in this case. I considered that the respondent could not envisage the complainants return, yet that it is the pathway the complainant himself favoured, if he succeeded. In this I have had some regard for the deliberations of Noonan J in Reilly. However, I have not chosen the reciprocal award.

I am mindful that the complainant had a large role to play in his dismissal and I would urge him to reflect on this contribution over time. However, based on the unique circumstances of the case, I believe that both parties deserve to have another chance at making the employment work.

However, I believe that the justice of the case requires me to consider an element of revisionism for both parties in the case.

I order the Respondent to re-engage the complainant on the identical terms of employment as before his dismissal into the position of Kitchen/Wash Up in an area/base which is mutually acceptable to both parties from September 19, 2019.

This is providing that the complainant completes company induction and agrees to a two-way performance appraisal to be undertaken during the first 6 months of his return to work. This may be enabled by provision of a coach or mentor.

It may transpire that the complainant has a declared availability for 15 hours out of his contracted 26 hours due to his carer’s role. This should be explored and agreed.

I would also recommend that the Respondent give some consideration to working pro-actively with the complainant on his literacy needs to fulfil his job requirements.

I urge the complainant to co-operate with this plan.

Unfair Dismissal.