Complainant

Respondent

Parties

Dariusz  Swider

Carey Glass

Representatives

  Self represented

Fiona O'Connor, Tom Smyth & Associates

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-00038398-001

28/06/2020

The Complainant contends that he was unfairly dismissed from his employment following an incident which resulted in his dismissal for gross misconduct.

The Complainant was employed as a Commercial General Operative from 15/07/2005 until he was dismissed due to gross misconduct on 27/03/2020.  The Respondent is a larger glass processing company employing circa 450 employees in a safety critical workplace.  The history and context of the safety critical nature of the business was outlined, summarised as follows:

There is a Union Agreement drafted and agreed with SIPTU which contains a Disciplinary procedure.  Given the importance of health & safety within the workplace, a separate Health & Safety Disciplinary Procedure was drafted and agreed with SIPTU.  This procedure refers to the ‘high level of importance of Health & Safety in the workplace’ and states ‘Any breach of work rules or other conditions of employment in relation to the Company Health & Safety rules and regulations/policies and procedures will not be tolerated.’  Examples of situations warranting summary suspension or dismissal include ‘wilfully or knowingly disregarding employee duties in relation to a person’s health and safety and failure to take reasonable care of their own safety and health, and that of other colleagues who might be affected by their actions or omissions whilst at work’.  These examples are drawn from the Safety, Health and Welfare at Work Act 2005 which places a statutory obligation on employees to take reasonable care to protect their own safety, health and welfare, in addition to the safety, health and welfare of any other person who may be affected by their acts or omissions at work.

The Respondent is at all times mindful of ensuring a safe place of work, and never more so than during March 2020.  At this time, everyone in the world was aware that Covid-19 is a life threatening disease spread via airborne respiratory droplets produced when an infected person coughs or sneezes.  It goes without saying, spitting would be included on that list if it was considered an involuntary action.   The WHO declared Covid-19 as a Global Pandemic on 11th March 2020, everyone in the country was advised to practice hand hygiene, practice social distancing, cover coughs and sneezes  and put the tissue in the bin immediately.  The Respondent erected signage to this affect throughout the workplace and through emails and posters related to the spread of Covid-19 circulated information throughout the workplace.  Additional cleaning control measures were implemented and risk assessments began towards the end of February 2020.  Throughout 2020 and 2021 the Company has continued to conduct risk assessments to identify the risks and implemented a number of Covid-19 Infection Prevention and Control (IPC) measures throughout the factory to reduce the risks of Covid-19 infection while keeping the business open and retaining as many employees in employment as possible.  White lines were painted on the floor at the turnstile clock in/out gates.   It is fair to say that all employees were aware of the new changes, procedures and IPC measures implemented at the time, many of which were being implemented throughout Ireland at that time also.  New signage was in place as evidenced by WhatsApp conversation between Domestic Director and HR Manager on 24th March 2020. The new Covid-19 signs placed throughout the factory on 24th March 2020 referred to the various IPC measures at the time; hand hygiene, use of hand sanitiser, need to regularly wash your hands; respiratory hygiene; physical distancing; use of additional PPE e.g. disposal gloves etc.  All employees complied with these new measures, many of which were in place throughout the community at that time also, in an effort to protect themselves, their families, and their work colleagues.

On 26th March 2020, at approximately 4.05pm an incident occurred at the turnstile clocking gates.     The incident was witnessed by 5 employees.  The Health & Safety Officer (HSO) and the Commercial General Manager (CGM) were monitoring the turnstiles to ensure employees maintained the appropriate social distance of 2 metres from the person in front of them.  White lines ensured the employees could observe this measure.  The HSO noticed the Complainant getting very close to the person in front of him.  He called out to the Complainant to remind him to keep a safe distance.  The Complainant did not step back when requested but turned his head towards the HSO and spat on the ground.  This was confirmed by the 5 witnesses in their witness statements.  The HSO called the Complainant again but he continued to clock out and left.

The Complainant was called to an investigation meeting the following day 27th March 2020 and he was accompanied by his SIPTU representative.  A written statement was drafted by the Complainant and his Union representative.  Translation was provided by BT, an employee who also acted as Translator throughout the process.  The notes of the investigation meeting were signed by the parties.  Witness statements were taken from the 5 witnesses.  A disciplinary meeting followed at 9.50am, and the Complainant was asked to respond to the witness statements.  His response was ‘what can he say, he said what he has to, they said what they have to’.  When questioned, the Complainant denied spitting on the floor towards the HSO and he showed no remorse whatsoever and a total lack of understanding for the seriousness of his behaviour.  As there was no dispute about the witness statements, and no mitigating circumstances presented, the Domestic Director believed there were reasonable grounds to believe the incident happened and given the severity of the issue, the sanction was instant dismissal.  The Director advised the Complainant and his Union Representative of the right to appeal.   Later that day, the Government announced the first mandatory ‘Stay at Home order’ restricting everyone to their home; exercise within 2km of their home.  A letter of dismissal was posted to the Complainant on 7th July 2020.  The delay in issuing the letter was due to the mandatory stay at home order which meant that the business closed and employees were placed on lay-off.  The Complainant was offered a right to appeal a number of times including in the letter of dismissal.  However, no appeal was received.

It is argued that the employer acted reasonably in dismissing the employee in this case.  As held in Looney & Co Ltd v Looney UD834/1984, the Employment Appeals Tribunal stated that it was their responsibility to:

“consider against the facts what a reasonable employer in the same position and circumstances at that time  would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

It is argued that everyone remembers where we were last March 2020 as a country, as a community and as a workplace.  We were terrorised and still are by a life threatening virus sweeping the world.      It is the Respondent’s case that this was a fair dismissal as there were substantial grounds, due to the conduct of the employee, justifying the dismissal on grounds of gross misconduct.

3 witnesses gave evidence on behalf of the Company.  The Translator gave his account of being at the meetings on 27th March 2020, the HR Manager gave evidence of the Covid-19 measures and communications regarding same.  The Domestic Director gave evidence of the investigation and disciplinary meetings and the fact that the attitude of the Complainant throughout the process was particularly concerning, demonstrating that the Complainant had no remorse for his actions which put colleagues at risk.        It was also deeply concerning that during one meeting, the Complainant stated “this is just another unimportant thing”.  The Director told him, “this is extremely important and your response shows your attitude on Covid-19.”   

The Complainant was dismissed following an investigation and disciplinary process during which he was afforded the right of representation and appeal.  I note that he did not exercise his right of appeal.   I note that the Complainant denied that he spat in the direction of the Health & Safety Officer and the fact that he showed no grasp of the seriousness of the situation.  The period during which the incident occurred was a most difficult challenging time, when the entire Country and wider world was in a fearful grip of Covid-19.  The Respondent had acted responsibly with thorough Infection Control and Prevention measures.   There is a responsibility on employees to comply in the interests of the health and safety of all in the workplace.  In this instant case, the Complainant, by his behaviour and attitude left the Respondent with no other option but to dismiss him on the grounds of gross misconduct.  Given the circumstances at the time, the employer acted as a reasonable employer would in summarily dismissing the Complainant in a situation where he put the health of others in the workplace in danger.   I do not uphold the Complainant’s claim of unfair dismissal.

Unfair dismissal.  Not upheld.  Health and safety.  Gross misconduct.