UDD206

• a.The Complainant and his colleague were unloading a trailer.
  b.The trailer was lower than normal which meant the pallets could not clear the buffers at the loading bay.
  c.The colleague went to inform the Manager of the problem and seek assistance. He sought a forklift truck to take the pallets off the trailer. The Complainant remained at the bay.
  d.The Complainant bent over and manually moved the pallet.
  e.The Complainant got back on his machine and lifted the pallet off the trailer.
  f.When the colleague returned his machine hit the Complainant’s machine. The colleague described this as “a very small collision”
  g.Neither employee reported the collision at that time.
  h.Later during that shift the Complainant, the colleague and another employee were approached by a manager who asked them to return to work. At this point the Complainant reported the collision and claimed he was in pain as a result.

• “l have taken the time to review your file and l note that you have received disciplinary sanctions in the past in relation to health and safety related matters. In fact, you are currently on a Final Written Warning due to a breach of Health and Safety which was issued to you in August this year. I cannot ignore the fact that you seem to have no regard for the Health and Safety procedures on this site and despite receiving sanctions already in this regard you will still ignore the rules”.

• “You have once again shown blatant disregard for Company policy and for Health and Safety procedures and despite being warned formally in the past have continued to behave in a manner that is not acceptable.”

• “I find that suspension would not be sufficient sanction, given the fact that the issues that gave rise to this process are so significant and can no longer be sustained by the company with no assurances that this behaviour will not be repeated in the future. The matters where your dishonesty has been highlighted during this process have resulted in trust and confidence necessary for an employment relationship being fatally eroded.”

• 
  “…. due to your record and I cannot be confident that you would not further breach Health and Safety on site to your own detriment or the detriment of one of your colleagues working alongside you. We can no longer tolerate such blatant disregard of Health and Safety that you have shown and cannot allow you to continue putting yourself and your fellow colleagues at unnecessary risk”.

Mr Conor O’Gorman, Ibec, on behalf of the Respondent submitted that the dismissal of the Complainant was both substantively and procedurally fair. He said he was dismissed for failing to follow a fundamental aspect of his job and for breaching health and safety. The dismissal was in relation to the accident that had taken place on site on 15th of October 2015. At the time of the accident the Complainant had a live final written warning for a previous incident which also concerned breaches of health and safety.

The Complainant had been issued with a written warning on 25th May 2015 to expire after nine months for dishonesty in reporting an accident and breaches of health safety procedure which occurred on 26th November 2014. On 11th July 2015 he was reported for another breach of health and safety and following a disciplinary hearing, it was found that he had contributed significantly to the situation that arose; primarily by breaching his training around safe picking procedures.He was issued with a final written warning on 23rd September 2015 to expire in twelve months. This warning was appealed. The warning was upheld.

Mr O’Gorman said that the outcome of both the disciplinary and appeal highlighted to the Complainant his failure to follow health and safety training and the importance of doing so.

Mr O’Gorman outlined the events leading to the Complainant’s dismissal. On 12^thNovember 2015, Mr Morrissey held a disciplinary hearing with the Complainant, in line with the internal processes, the Complainant was afforded representation. Mr Morrissey reviewed the Investigation Report and the CCTV footage and held that it was evident that the Complainant had stepped off his machine and had attempted to lift a pallet physically in a confined space in breach of health and safety and the training he had received. In his outcome, he pointed to the fact that the Complainant was on a final written warning for breaches of health and safety and continued to disregard the health and safety procedures on site. He held that as health and safety related sanctions issued to the Complainant were so significant that they could not be sustained by the Respondent with no assurances that this behaviour would not be repeated into the future. He also found that the Complainant’s honesty had been called into question and held that there was a breakdown of trust and confidence which was necessary for the employment relationship. He concluded that there was no other option at this juncture other than to dismiss the Complainant for his disregard of internal health and safety procedures.

The Complainant appealed the sanction on 20th November 2015, an appeal hearing was held on 3rd December 2015, with Mr Prendergast. At the hearing, when Mr Prendergast asked a question in relation to the MHE collision, the Complainant appeared to be amused to the point of laughing which led Mr Prendergast to believe that the Complainant was not taking the matter seriously.

On 8th December, Mr Prendergast wrote a detailed letter to the Complainant and outlined his concerns about the Complainant’ behaviour at the appeal meeting and his concerns that the Complainant had not learned from his previous sanctions around various issues relating to health and safety behaviours on site. Mr Prendergast upheld the dismissal.

Mr O’Gorman stated that the Respondent operates a workplace where health and safety comes first. All employees must undergo the full spectrum of health and safety training when they commence employment and refresher training annually thereafter. The Complainant was fully trained in the procedures of safe working. He said that the Complainant in the instant case had repeatedly shown that he was unwilling or incapable of maintaining the basic standard of safety in the workplace. He submitted that faced with an employee who repeatedly injured themselves in the workplace, any reasonable employer would be compelled to act.

In support of the Respondent’s position, Mr O’Gorman citedBesebvei v Rosderra Irish Meats Group LimitedUD37/201 4, where the Employment Appeals Tribunal stated:-

• “It is unacceptable in circumstances where a properly conducted Risk Assessment has led to the introduction of a safety measure that an employee should arbitrarily decide not to comply with the measure…..”

• “... the claimant’s work record and the good service is acknowledged. However, it is the considered conclusion of the Tribunal that the investigation process was reasonably satisfactory and that there can be no compromise in relation to the important matter of health, safety and welfare at work.”

Summary of the Complainant’s Case

MrVivian Cullen, SIPTU, on behalf of the Complainant,contended that the Complainant’s dismissal was unfair and that his complaint per se was well-founded, based on the balance of probabilities. He said that on the day in question, the Complainant was looking around for a space to tip the pallet when his colleague reversed into him and hit the pallet he had on his shortlegger. The Complainant said that while getting off his machine, on his way to report the collision, he experienced back pain. He then placed the pallet on the grid and reported that he had an accident to Mr John Dandy, Warehouse Team Manager.

Mr Cullen argued that the statements by Mr Morrisey in his letter dated 12th November 2015 to the Complainant, were highly prejudicial, biased and an attack on the Complainant’s integrity, who refutes that he was dishonest. He said that Mr Morrissey based his decision to dismiss the Complainant on numerous grounds not referred to in the investigation stage. Furthermore, he contended that the reference in the letter of dismissal to the fact that the Complainant’s final pay slip and P45 would be sent to his home address negated any appeal process.

The Complainant did appeal. The outcome of which was unsuccessful for the Complainant. The matter was then referred to the Workplace Relations Commission for adjudication.

Mr Cullen contented that it was not clear from the CCTV footage that the Complainant was guilty or in breach of health and safety and instead he stated that it was the Complainant’s contention that he was scanning the label and removed the pallet with his machine. He said that it was the Complainant’s contention that following the accident the Complainant was in a state of shock and pain and did not report the collision straight away. He said that the Respondent seemed to regard this as an aggravating factor and not a mitigating one.

Mr Cullen maintained that, in the circumstances, the decision to dismiss was not a proportionate response and was disproportionate as it did not consider mitigating factors. He disputed the Respondent’s reliance on prior disciplinary warnings, live or expunged. He argued that the reaction of the Respondent fell outside what could be considered a reasonable or a measured response as the Complainant was not given an opportunity to reform his conduct or performance. He said that it was a fundamental principle of law generally and employment law in particular, that any disciplinary action taken by the Company should be proportionate, that is to say, the response to the conduct must be measured and the punishment must fit the wrongdoing. In that regard he relied uponFrizelle v New Ross Credit Union Ltd[1997] IEHC 137 where Flood J, of the High Court said:-

• “The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and the gravity and effect of dismissal on the employee.’

The Law

Section 6(1) of the Acts provides: -

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

The fact of dismissal in this case is not in dispute between the parties and therefore the Respondent carries the onus of showing that having regard to all the circumstances there were substantial grounds justifying the dismissal. The Respondent contends that the dismissal was justified on grounds of the Complainant’s significant actions in breaching health and safety procedures which it held could no longer be sustained where there was no assurance that his behaviour would not be repeated in the future.

The issue before the Court is whether or not it was reasonable for the Respondent to terminate the Complainant’s employment in the circumstances. Was it reasonable for the Respondent to decide that its trust and confidence in the Complainant “had been fatally eroded”. It is not for the Court to put itself in the place of the employer in the within case. Rather the role of the Court is to determine whether or not the actions of the employer fall within the range of actions which a reasonable employer would take in the circumstances.

This approach of whether or not a reasonable employer would have dismissed the employee in the same circumstances was explained by Donaldson LJ inUnion of Construction Allied Trades and Technicians v Brane[1981] IRLR 224(Court of Appel for England and Wales) in the following terms: -

• "It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances”

• "[T]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded."

The Court is satisfied that these actions by the Complainant could be regarded as sufficiently grave to give rise to a loss of trust and confidence in him. In circumstances where the Respondent places such priority on ensuring the health and safety of its workforce and where there were serious risks involved, it is understandable that the continuation of the Complainant’s employment relationship was in serious doubt, warranting dismissal.

InBesebvei v Rosderra Irish Meats Group LimitedUD37/2014, the Employment Appeals Tribunal stated:

• "It is unacceptable in circumstances where a properly conducted Risk Assessment has led to the introduction of a safety measure that an employee should arbitrarily decide not to comply with the measure ..... "

• "... the claimant's work record and the good service is acknowledged. However, it is the considered conclusion of the Tribunal that the investigation process was reasonably satisfactory and that there can be no compromise in relation to the important matter of health, safety and welfare at work."

The Court notes that the Respondent concluded that having regard to all matters the Complainant seemed to have no regard for the health and safety procedures on the site despite receiving previous disciplinary sanctions. It considered its duty of care to employees and its zero tolerance approach to breaches of health and safety and in that regard, while it considered alternative sanctions to dismissal, it concluded that as it had no confidence that his behaviour would not be repeated in the future, it was therefore of the view that it had no alternative but to dismiss him.

The Court finds that in all the circumstances the actions of the Respondent in dismissing the Complainant for loss of trust was justified and therefore the decision to dismiss was reasonable in the circumstances.

Determination

In all the circumstances, and having regard to the foregoing, the Court finds that the Respondent had reasonable grounds to dismiss the Complainant. Therefore, the Complainant’s appeal fails, and the Adjudication Officer’s Decision is affirmed.

The Court so Determines.



Signed on behalf of the Labour Court



Caroline Jenkinson
TH______________________
29 January 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.