Complainant

Respondent

Anonymised Parties

A Production Worker

A Cleaning Company

Representatives

Colm Kitson BL Gallagher & Company

Dominika O'Sullivan The HR Suite

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-00027789-001

16/04/2019

The Complainant was a production worker on the site from 30th July 1996 until 15th February 2019.

The Complainant says the Respondent acted unfairly and he was bound to be dismissed. The charges do not amount to gross misconduct. Complaints 3-5 are irrelevant.

The Complainant was told to clean the silo by the client on site. His supervisor was there at the time and he was aware the Complainant was going to clean the silo. The supervisor did not give him an instruction to stop or obtain assistance or not to do this. The Complainant denies it is a significant health and safety breach. This is an updated rule, as up to recently the silos were cleaned by 1 person.

The Investigator had a difficult relationship with the Complainant, and had investigated him previously. He was both investigator and witness in the investigation. The dismissal relies on disciplinary findings made previously. The decision maker is also a witness in the investigation. The Complainant has 20 years’ service and was not aware of the health and safety breach. He thought he was doing a good job for the client as the cleaning had to be done.

The Complainant gave evidence that he cleaned the silo by himself many times. He raised this with his supervisor in December 2017 who told him it was a one person job. His supervisor was aware of what he wore which is a yellow safety jacket, glasses and mask. Full personal protective uniform was not worn.

He accepts he cleaned the silo on his own on 15th January 2019. He informed client management that the flour was blowing out of the silo. The client manager asked him to clean the silo. He told the client manager this must be authorised by the Respondent. He went to clean the silo. He was not in the silo but shovelling from the door. No issue was raised with his protective equipment by his supervisor. He also drives the forklift. It was windy so he lifts up his goggles and gets flour on his face.

He accepts he was in breach of the training for standard operating procedures and was not wearing a bung cap. This was not required previously. He said the maintenance manager had turned off the silo and the environmental manager was present. It was not risky. His supervisor thought he was doing it the right way. He had asked this to be reported to management. He did not put his life at risk as he was outside the silo.

The Complainant requested an Investigator be available for the hearing. The Investigator did not give evidence on behalf of the company.

The Complainant commenced employment in 30th July 1996 and his employment transferred to the Respondent as a result of a transfer of undertakings in January 2016. The Complainant was dismissed due to gross misconduct following a fair and objective disciplinary process in line with procedures on 15th February 2019.

The Complainant was advised of his right to appeal and on 8th March 2019 sent his grounds of appeal. The meeting was rescheduled and on 27th March 2019 the Respondent received a letter seeking compensation for unfair dismissal and that the Complainant would not attend the hearing on 3rd April 2019.

On 9th April 2018 the Complainant was invited to a Disciplinary investigation meeting to investigate allegations of policy and procedural breaches. The Complainant declined to be represented.

On 12th April 2018 the Complainant admitted he was aware of the policies and procedures and admitted the breaches. A transcript was provided to the Complainant which was not disputed. The Complainant was invited to a disciplinary hearing and declined representation. He again admitted to the allegations including serious health and safety site policy breaches. On 27th April 2018 the Complainant was issued with a second written warning which was in place for 12 months. The Complainant did not avail of his right of appeal.

On 21st January 2019 the Complainant was invited to a meeting with the Hygiene Manager and was suspended. He was accused of failing to follow a management request, failing to comply with company policy and unsafe behaviour, lack of respect for client and staff on 16th January 2019, failed to follow clocking in procedures for 2 weeks, unauthorised leaving work on 18th January 2019 all of which potentially constituted gross misconduct.

The investigation meeting with the Complainant took place with the Hygiene manager and HR manager. The Complainant waived his right to representation at the meeting. The Complainant was notified on 1st February 2019 that he had a case to answer and was provided with the investigation report and witness statements. The disciplinary hearing took place on 7th February 2019. Notes of the meeting were furnished to the Complainant who did not dispute the account. The allegations of :

1 Cleaning the silo alone without a colleague on 14th January 2019.

2 Failing to wear full personal protective equipment on 14th January 2019.

3 That the Complainant interacted inappropriately with a client on 16th January 2019.

4 That the Complainant left the site without completing his tasks unauthorised without following correct notification.

5 The allegations that the complainant did not correctly clock in and out for breaks over a 5 week period.

were all upheld on 15th February 2019 and the Complainant notified.

The Complainant admitted cleaning the silo alone and not wearing full PPE which is mandatory. He did not wear a bump cap and mask as he had flour in his eyes, nose and eyes were very red. The Complainant had received training on confined spaces with escape and breathing apparatus in 2017. He admitted acting angrily and that he had been speaking loudly. He admitted leaving the site on 18th January 2019 without the tasks being done, and management were not aware. He admitted not clocking in and out correctly.

The Complainant deliberately disregarded health and safety and established procedures and broke the trust of the employer. The sanction given in 2018 was lenient. The hearing manager carefully considered other sanctions such as moving to an alternative site but felt it was not appropriate given the strict adherence to health and safety rules.

The Respondent complied with the principles of natural justice. The Complainant was entitled to bring a representative for the investigation and disciplinary process. He was given the opportunity to reply and failed to appeal. He contributed to his dismissal and was aware of the policies he breached. This was done intentionally.

An alternative sanction was considered however a second written warning was received in April 2018. The Complainant was previously demoted from Hygiene Supervisor, and no further demotion was available.

The Respondent says they acted reasonably in dismissing due to misconduct pursuant to S6 (4) (b) of the Unfair Dismissals Acts 1977-2015 and the dismissal was within the range of reasonable responses of a reasonable employer. The Respondent relies on JVC Europe Ltd v Panisi [2011] IEHC 279 and the decision in Bank of Ireland v James Reilly [2015] IEH 241 that a Court may have regard to the reasonableness of the employer’s conduct, and not substitute its own judgement.

I heard and considered carefully the written and oral evidence of the parties.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (whether by act or omission) of the employer in relation to the dismissal and,

(b)    to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in S14 (1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals Amendment Act 1993) of section 7 (2) of this Act.

The burden of proof lies on the Respondent to establish the dismissal of the Complainant results wholly or mainly from the Complainant’s conduct.

The company disciplinary policy sets out a number of matters under the heading of gross misconduct:

“Breach of the Company Health and Safety rules or failure to comply with employee responsibilities under the Safety, Health and Welfare at Work Act 2005 or any action that threatens the health and safety of employees or other persons or failure to comply with any health of safety requirements at Client or Company site..

Deliberate failure to follow site rules on Company or Client premises..

Absence for work without leave and false or misleading explanations for absence..”

The Complainant received a second written warning in April 2018 prior to his dismissal in February 2019. The complaints involved the Complainant leaving a scrubber dryer with the keys in accessible by other staff, another climbing a glass wall to open a building, which the Complainant accepted are serious breaches of health and safety. Other issues were the Complainant leaving the client site early without completing work in advance of an audit, not wearing full uniform and clocking in and out. This warning remained on the Complainants record for a period of 12 months.

Some nine months later on 21st January 2019, the Complainant was suspended. He was subsequently dismissed due to gross misconduct for further serious health and safety breaches of cleaning a silo alone without a colleague, failure to wear full personal protective equipment for cleaning the silo, interacting inappropriately with client management, unauthorised leaving client site, failure to clock in for breaks on 15 occasions over 5 weeks.

The Complainant accepted in evidence that he was aware of the company procedures requiring 2 staff to work on the silo.

The appropriate test is that outlined by Mr. Justice Noonan in Reilly v Bank of Ireland [2015] IEHC 241 and the question is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.

Adesokan v Sainsbury’s Supermarkets Limited 2017] EWCA Civ 22 was an appeal by a Manager against a dismissal for gross misconduct. The decision to dismiss was upheld and Lord Elias found that the Managers omission constituted gross misconduct because it had the effect of undermining the trust and confidence in the employment relationship. The Court noted the Manager seems to have been indifferent to what in the company's eyes was a very serious breach of an important procedure. It found that gross negligence is sufficient to amount to gross misconduct and deliberate conduct is not required.

The Company trained the Complainant about changes to procedures for working in silos and these were updated. It is evident from the disciplinary hearing in 2018 the importance the company places on compliance with health and safety. The Complainant seems to lack understanding of the gravity of the health and safety breaches he committed. There have been numerous fatalities in other companies due to the risk of working in silos. Similar conduct is repeated by the Complainant in breaches of health and safety procedures and other breaches on both occasions. The disciplinary procedure of the Respondent allows the record of the Complainant to be taken into account on dismissal.

In all the circumstances, I find the dismissal is fair.

The decision to dismiss is fair.

Breaches of health and safety, gross misconduct, repeated breaches, conduct