UDD2139

1.Appeal of Adjudication Officer Decision No(s). ADJ-00014739 CA-00022427-001.

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 10 December 2019 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place in a virtual setting on 25 March 2021. The following is the Determination of the Court:-

DETERMINATION:

This matter comes before the Court as an appeal by Donegal Meat Processors t/a Foyle Donegal of a decision of an Adjudication Officer made in a complaint made under the Unfair Dismissals Act, 1977 (the Act) by Gavin Nicell.

The Adjudication Officer decided that the complaint was well founded.

In this decision the parties will be referred to as they were at first instance. Hence, the former employer will be referred to as the Respondent and the former worker will be referred to as the Complainant

The Case

The Complainant was employed by the Respondent from March 2003 until his dismissal on 20^thAugust 2018 following a disciplinary hearing. It is common case that an incident occurred in the boning hall where the Complainant was employed on 27^thJuly 2018. As a result of that incident a colleague of the Complainant suffered a knife injury.

The Complainant appealed the decision to dismiss him on 21^stAugust 2018. An appeal hearing took place on 4^thSeptember and by letter dated 12^thSeptember the Complainant was advised that his appeal had been unsuccessful.

The colleague who suffered the injury on 27^thJuly 2018 was separately dismissed as a result of the incident.

Summary position of the Respondent

On 28^thJuly 2018 the boning hall manager, SC, received a private message on Facebook from an employee, LMcG, stating that he had been injured at work on 27^thJuly. Over the course of the 28^thand 29^thJuly LMcG sent several messages saying that his injury had been caused by a fellow employee in the boning hall.

On 30^thJuly SC gave a statement to the HR manager indicating what had occurred over the weekend. Further statements were taken from GM, a first aider who was on duty on 27^thJuly, and from L J, the boning hall supervisor.

On 1^stAugust the Complainant made a statement indicating that he was the other party involved in the incident with LMcG. In that statement he said that he and LMcG ‘had words’ and that he went to push LMcG away but as he was holding his knife in his hand he had caused injury to LMcG. The Complainant also submitted some Facebook messages between himself and LMcG where LMcG indicated that he was in hospital, and had severed two tendons in his hand in the incident.

On 3^rdAugust the HR manager met with the Complainant and suspended him with full pay pending the outcome of an investigation. On that day also the HR manager met with LMcG who stated that the Complainant had made to push him but had a knife in his hand and consequently LMcG was cut.

A further investigation meeting with LMcG was held on 7^thAugust. On that occasion LMcG said the Complainant had told him not to report the incident on 27^thJuly because he, LMcG, might not pass the mandatory drug and alcohol test.

On 10^thAugust the Complainant was invited to a disciplinary hearing and the letter of invitation advised him that it was alleged that he had 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 incident. The letter advised the Complainant that the potential outcome of the disciplinary process could lead to disciplinary action up to and including dismissal. He was also advised that he was entitled to be accompanied by a representative at the disciplinary hearing.

On 20^thAugust, MMcD, who had convened a disciplinary hearing on 15^thAugust, wrote to the Complainant to advise him that he was being dismissed for failure, in contravention of the Respondent’s policies, to report an incident in a safety critical environment and for deliberately ignoring safety rules and thereby endangering his own or another’s physical wellbeing.

The Complainant appealed that decision by letter dated 21^stAugust to L.O, the Group HR Manager of the Respondent. An appeal hearing took place on 4^thSeptember 2018 at which the Appellant was represented by SIPTU. The appeal was unsuccessful and on 12^thSeptember L.O wrote to advise the Appellant that he had no choice but to uphold the decision to dismiss for deliberately failing to follow fundamental policies and procedures. L.O also expressed his firm belief that the Appellant had failed to take reasonable care to protect the safety, health and welfare of another employee by his act and by his omission to report the incident.

The Respondent submitted that the Appellant failed to follow fundamental procedures in a safety critical environment. He had received knife training and refresher training in relation to the use of knives. The Appellant had failed to follow safety critical procedures and had further failed to meet the requirement to report the incident when it occurred. The Respondent highlights safety as a critical requirement and the Appellant’s failure to follow critical procedures amounted to gross misconduct.

Summary testimony on behalf of the Respondent

SC, the Respondent’s Boning Hall manager, gave evidence on behalf of the Respondent. He said that he first heard about this incident from LMcG through social media on Saturday evening the 28^thJuly 2018. LMcG would not reveal the identity of the person who had caused his injury. SC stated that it was company policy that any person involved in an incident was obliged to report that incident immediately to the Respondent but that the Complainant had not made any report until the Wednesday following the incident.

BK, who investigated the matter, stated that it was company policy that any employee involved in an incident was obliged to report that as soon as possible. It was the Respondent’s policy without fail to conduct a drug and alcohol test of all individuals involved in incidents. There is no value to such a test if it is not conducted immediately upon the occurrence of an incident. All employees are aware of these policy requirements. The fact that LMcG advised the boning hall manager on Saturday the 28^thJuly is not acceptable. The report should have been made on 27^thJuly when the incident occurred. She said that the Complainant understood that he was obliged to report the incident immediately but did not make a report until his third day back at work following the date of the incident.

MMcD, who conducted the disciplinary hearing, gave evidence. He said that the Respondent provided extensive training on the safe use of knives and that the Complainant at the disciplinary hearing had not disputed that he had behaved in a manner contrary to the safety requirements of the Respondent. He stated that the fact that the Complainant had not reported the matter from Friday morning the 27^thJuly until the following Wednesday was a factor in his deciding that the appropriate penalty was dismissal. The Complainant was, in accordance with the accident reporting policy of the Respondent, under a strict duty to report the matter immediately because he was himself involved in the incident. He was aware that the Complainant had suggested that alcohol was a factor in the behaviour of LMcG but it was not an established fact and as such the question of the presence or influence of alcohol was not a matter which he had taken into account in deciding to dismiss. The sole factors taken into account were the failure to follow safety procedures and the failure to report the incident immediately as required.

L.O, who conducted the appeal hearing, gave evidence to the effect that the training and standard operating procedures of the Respondent emphasised the obligation resting on employees to report incidents as soon as practicable. There was no dispute that the Complainant had not reported the matter for over three working days following its occurrence. All employees involved in incidents are tested for drugs and alcohol on the day of an incident and before they left the site. Any suggestion of the role of alcohol in the incident on 27^thJuly was not taken into account because it could not be established as fact. He said that the principal risk factor in the business was knife safety and for that reason all employees, including the Complainant, were fully trained and refreshed in their training in relation to this matter. The Complainant breached relevant safety procedures on 27^thJuly and consequently endangered himself and other employees. He said that the Complainant was unable to put forward any mitigating factors as regards his breach of knife safety and his failure to report the incident. He said that Complainant had caused a serious injury to another employee and it was a critical failure that he did not report the incident. In his view trust in the Complainant was gone.

Summary position of the Complainant

The Complainant submitted that he had been unfairly dismissed. He submitted that on 27^thJuly he had pushed a colleague away from him because the colleague had alcohol taken and was making it impossible for the Complainant to do his work. Because he had a knife in his hand the Complainant accidentally cut his colleague’s hand.

He submitted that the injured person and the first aider who attended him were in a much better position than he to report the incident. Supervisory staff were also in the area and must have been aware on the matter. The Complainant submitted that he had fully co-operated with the investigation of the incident when it commenced. He submitted that the colleague who had been injured may have been moved by management on the day because he seemed to be under the effects of alcohol.

The Complainant’s submission to the Court acknowledged that the Respondent adhered to the various investigative and disciplinary steps in agreed procedures. He submitted however that the decision to dismiss him was unreasonable. He referred to the case ofMorales v Carton Brothers (UD835/2011)where the Employment Appeals Tribunal outlined the obligation of reasonableness resting upon the Respondent and where the Tribunal stated that the conclusions of the Respondent in that case “could be considered perverse”.

He also asked the Court to consider the case ofKunceviciene v Elder Nursing Homes (Charleville) (UD97/2015)where the Tribunal stated that “A zero tolerance policy does not mean that the most serious sanction is or must be imposed for all breaches, irrespective of the seriousness of the breach”.He contended that the Respondent characterised every act or omission by him in its most extreme form in order to construct and maintain a justification for the decision to dismiss.

He submitted that the Respondent had not followed up with others present on site on the day as to why they did not report the incident, that the Respondent had failed to address precisely why the injured party was moved by a supervisor on the day, failed to consider that the Complainant had no way of anticipating that he would be presented at work with a colleague who appeared to be under the influence of alcohol or that other persons present on the day had corroborated the Complainant’s view that the injured party was under the influence of alcohol on the day.

The Complainant submitted that the Respondent was incorrect to contend that he had deliberately failed to report the incident in a reasonable timeframe. He accepted that while his conduct fell short of what should have been expected of him, the sanction applied to him was grossly disproportionate.

Summary testimony of the Complainant

The Complainant gave evidence to the Court wherein he stated that he thought it was the responsibility of the ‘first aider’ who dealt with the injury on the day to report the incident to the Respondent. He found out on the Monday following that it had not been reported and on the Wednesday that the incident was being investigated. He accepted that the incident was a breach of Health and Safety policy.

He confirmed that he was aware of the Respondent’s policy of ‘with cause’ drug and alcohol testing in the aftermath of the occurrence of incidents.

Relevant law

The Act at Section 1, in relevant part, defines dismissal as follows:

“dismissal”, in relation to an employee, means—

• (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

• 6. (1) 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.

  (6) In determining for the purposes of this Act whether the dismissal of an 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.

  (7) 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 or the Labour Court, as the case may be, considers it appropriate to do so —

  • (a) to the reasonableness or otherwise of the conduct (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 section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d)

Discussion and conclusions

There is no dispute between the parties that the investigative and disciplinary procedures employed by the Respondent to address the matter at issue were in full accord with the written procedure of the Respondent. There was no contention that that those procedures do not conform to the requirements of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures).

The factual matrix of the events giving rise to the within appeal are not in dispute. It is common case that on 27^thJuly 2018 an incident occurred wherein the Complainant caused injury to a colleague with his knife in the Boning Hall of the Respondent. The only witnesses to the event were the Complainant and the injured party albeit a first aider in the employment of the Respondent did administer first aid to the injured party on the day. It is common case that neither the Complainant nor the injured party reported the incident to the Respondent on the day on which it occurred. It is common case also that the Complainant was trained in the safe use of knives in his employment and that this training was regularly refreshed. Both parties also agree that the incident represented a breach of the Health and Safety policies of the Respondent.

The Complainant has made assertions as regards the possible role of alcohol in the behaviour of the injured party. It is clear that such assertions were not capable of being established as fact by the Respondent. The Court accepts the testimony of decision makers in the disciplinary matter that no weighting was attached to this matter in arriving at the decision to dismiss. The Respondent has submitted that the clear basis for the decision to dismiss was the behaviour of the Complainant and that there was no reasonable basis to mitigate his alleged offence on the basis of unproven assertions as regards the possible influence of alcohol on the behaviour of another person. The Court does not consider the approach of the Respondent in this respect to be unreasonable.

The Court has heard evidence from the Respondent that the use of knives is the highest risk factor in the Respondent’s business and that, for that reason, all relevant employees receive significant training in relation to this aspect of their work. There is no dispute that the behaviour of the Complainant on the day was in breach of the policies in place and did not reflect the training he had received. That breach resulted in a significant injury to a colleague.

The Court notes the disciplinary policy of the Respondent specifies that gross misconduct can lead to summary dismissal and also notes that gross misconduct is defined as including

• ‘deliberately ignoring safety rules and thereby endangering one’s own or another’s physical wellbeing or safety’.

In the within matter the Complainant acknowledges that he did not behave in a manner consistent with the safety policies of the Respondent and that a colleague suffered an injury as a result.

The Health and Safety Policy of the Respondent makes explicit provision as follows:

‘All employees are expected to report incidents when they occur or as soon as possible.’

It is well established that in exercising its jurisdiction under the Act it is not for this Court to put itself in the place of the employer. In Bunyan v United Dominions Trust [1982] ILRM 404 for example, the EAT adopted and applied the following principle enunciated by the UK EAT inNC Watling Co Ltd v Richardson [1978] IRLR 225:-

• [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.

Having regard to all the circumstances in the instant case and in particular the safety critical nature of the work upon which the Complainant was engaged and the comprehensive Health and Safety policies of the Respondent including the clearly articulated obligation resting upon the Complainant to report all incidents, the Court accepts that the Respondent was of the view that there were substantial grounds justifying the dismissal of the Appellant.

The Court is satisfied that the decision of the Respondent to dismiss falls within the range of responses which could be expected of a reasonable employer in the circumstances. The Court therefore concludes that the Complainant was not unfairly dismissed.

Decision

The Court determines that the dismissal was not unfair and upholds the appeal. The decision of the Adjudication Officer is set aside.

The Court so decides

	Signed on behalf of the Labour Court
	Kevin Foley
TH	______________________
14 May 2021	Chairman