Complainant

Respondent

Parties

Siarhei  Klimasheuski

Tattonward Limited

Representatives

Martin Cosgrove, Solicitor, of A.B O'Reilly Dolan & Co and Bernard McCartin, Solicitor. 

 Vincent Turley

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-00039987-001

22/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00040040-001

23/09/2020

This is an unfair dismissal complaint arising from a dismissal on 22 May 2022 based on gross misconduct.

The gross misconduct that the Respondent relies on involve incidents of health and safety breaches whereby the Complainant failed to comply with the COVID 19 health and safety procedures in place and showed reckless disregard for the safety and wellbeing of residents and other staff within a Direct Provision Centre in Monaghan where the Complainant worked as a porter. These incidents occurred in early April 2020, just as the Covid pandemic  lockdown had commenced.

CA-00040040-001 is a duplicate of CA-00039987-001 and for this reason the duplicate complaint was withdrawn on the first day of the Adjudication hearing and CA-00039987-001 proceeded

The Complainant worked as a porter in a Direct Provision Centre in Monaghan which is run by the Respondent. He worked from October 2009 until May 2020.

Following the Government announcement of a nationwide lockdown in late March 2020 the Respondent a Direct Provision Centre (a centre where persons seeking asylum live)  as an essential service, remained operating.

The Complainant was on leave on 25 March 2020 when the Respondent convened a health and safety meeting at which the new Covid protocols were explained to all staff.

When he returned to work on 26 March 2020 nothing was explained to him and he was not provided with any personal protective equipment (P.P.E) until 10 April 2020.

As English is not his first language, the new protocols should have been explained to him in his language, namely Russian, but this did not occur until after the alleged Health and Safety breaches occurred. His English is okay but it should have been fully explained to him in his own language.

He gave evidence at the Adjudication that he was very aware of the dangers that Covid 19 presented in March/April 2020. His children were of a school going age and he knew the schools had been shut down nationally. He was very concerned for his own safety at this time. Indeed as no PPE was provided to him in work, he to buy his own mask. He accepts that on the incident on 8th April 2020 (where a person – who was a chef and was not his line manager) became annoyed with him about how he was doing his job) that he had a mask but was not wearing it all the time because he found it difficult to breathe through. Furthermore as the protocols had not been properly explained to him before the incident on 8 April 2020, he did not understand why the chef was so annoyed with him. The only thing that the other Russian speaking employee had told him before then was to sanitise door handles, which he did but he had not been told to clean around the handles or do any other surface cleaning.  He was told to stand at the door of the canteen and wiped the handles down.

Not only was he not made aware of all the protocols but he was not told that breaching the protocols could be considered a gross misconduct offence, because the protocols themselves were never fully explained to him. He was on leave on 25 April,  when the explanatory meeting took place and on his return he was not properly instructed other than that the numbers in the canteen must be a kept to a minimum and that he must wipe down door handles, but even that seemed incorrect to him because the porters had been given anti-bacterial solution, not an anti-viral solution (such as Milton or bleach.) He told this much to GS.

When the chef got annoyed with him on 8 April, he was extremely anxious himself about getting the virus and bringing it home with him. On 8 April he also learned of a suspected Covid positive case in one of the residents in the Centre. It was completely untrue to say he was reckless or did not care about the dangers of the virus. It was of the utmost importance to him that he did not get the virus. It was the Respondent who appeared to be reckless by not issuing PPE until 10 April 2020.

He disputes much of the evidence given by the Respondent management at the Adjudication hearing. He was suspended on 14 April 2020 and dismissed on 22 May 2020. He was not given a proper opportunity to explain his side of things and he thinks that he was singled out because he had been blamed by kitchen staff about a dirty oven and was disciplined a year earlier in May 2019. He thinks that following this the kitchen staff and management were looking for a reason to dismiss him.

He disputes the fairness of the dismissal and the procedures to dismiss him were flawed and unfair. All the evidence to support what he was saying was on the CCTV but no one watched this during the investigation.

His financial loss arising from the unfair dismissal was €9244.56

The Respondent contends that the evidence of the Complainant at the Adjudication hearing is untrue, inconsistent and lacks credibility.

The Respondent witnesses

Kathryn Kennedy (KK) Office Administrator gave evidence as follows:

The Complainant was absent from work on 25 March 2020 when the staff we briefed on new Covid protocols.

On his return to work on 26 March, KK, explained all the protocols to the Complainant. She had another staff member with her when she did this. This was an extremely challenging time for the Respondent. At that time the government had not yet published any health and safety protocols so the Respondent’s protocols had been devised by themselves, based on what they knew from other countries and what they considered to be prudent health and safety measures. These were not written in a document, they were explained verbally to staff. The Complainant along with all staff, were provided with PPE (masks, apron, hairnets, gloves) between 17 – 23 March 2020. And they were informed of the necessity of wearing PPE at all times in the Centre.

On 26 April 2020 KK instructed the Complainant as follows:

-        That the number of residents in the canteen were restricted to a maximum of 6, 4 people dining. The management of these numbers were up to porters stationed at the canteen door, which included the Complainant.

-        Residents had a maximum of 15 minutes only to eat their food in the canteen.

-        The Complainant was to ensure that all persons entering the canteen maintained social distancing and were to hand sanitise before they entered the canteen. Floor marking and signage on walls were clear in any event, but the protocols were fully explained to him.

-        He was to wipe down the door handles, bannisters and all commonly touched surfaces with sanitising solution

-        He was to social distance himself and ensure that others in the canteen or those waiting to enter the canteen did also.

This conversation was witnessed. The Complainant was asked if he understood and he said that he did. The Complainant’s understanding of English of a good standard. He always communicated in work through English. It was only at the Adjudication hearing that he required an interpreter.

However to ensure he understood everything KK asked a Russian speaking employee, Gytas Stamburas, to go through the protocols with him again in Russian.

This was a serious time for the Respondent. Cleaners and porters were important staff because they were the first line of defence against transmission. The protection of staff and the protection of the residents were at stake. Many of the residents were medically and psychologically vulnerable. It was very important that all staff were instructed precisely on what the protocols were and there was not room for laxity or carelessness.

On 1 April 2020 KK was told by another porter that the Complainant was not wiping the door handles down with sanitiser and was not cleaning communal areas. She told him to tell the Complainant that he needed to do this.  A note was left in the porters’ cabin about Milton being used for the wipe down solution and to use the spray bottles as provided. The day porter on duty left these products for the Complainant who was doing the night shift that night, but the following day when the day porter came into the cabin it was clear that the products had not been used by the Complainant. He reported this all back to KK who told James Keogh (JK) the manager

On 8 April 2020 KK went into the canteen and came upon an argument between the Complainant and the chef, Mary Mannering (MM.) Voices were raised and MM was upset. She told KK that the Complainant was not following the protocols and that she had to stop a resident coming into the canteen when the maximum number was already there. There were 5 in the room when KK went in. Also, the Complainant was not getting the residents to use the hand sanitiser before they came in and he was not wearing his mask. He had said to MM that the “mask was no use.” It was KK view that the Complainant objected to the head chef giving him instructions when she was not his line manager.

KK spoke to her line manager (Chrissy MacNeill – CmacN) who instructed her to tell the Complainant to leave his post and do other work instead. KK told the Complainant to do other work and a kitchen porter replaced the Complainant on door duty.   

Mary Mannering (MM) gave evidence as follows:

She repeated the evidence of KK in respect of the incident on 8 April, but in addition she said:

Everyone was nervous at this time, the staff and the residents.

Everyone was keeping the rules because we were all anxious.

When she asked the Complainant to ensure that all residents use hand sanitiser, he waved his hand and shrugged as if to suggest this was not necessary. He let 5 into eat in the canteen. He was not controlling the numbers at the door.  I asked a kitchen porter to come to the door to stop people coming in. The Complainant told her that this was his job and she wasn’t in charge of him. The Complainant started raising his voice. In her view, by his actions he was the weak link in the defence to infection and he was exposing them all to risk. There was a suspect positive case in the Centre that day and everyone knew it. Under cross examination she accepted that she was not the Complainant’s line manager but as head chef she was in charge of the kitchen. She said there was wall signage which explained the protocols in the canteen. No one could say that they did not understand what the protocols were.

On 14 April 2020 another incident occurred in the canteen when the Complainant was not wearing full PPE. He was wearing neither a mask nor a plastic apron. He also was not managing the numbers and was not asking people to use hand sanitiser. The manager (CMacN) came in and MM asked CMacN to deal with the Complainant in order to avoid an argument like the week earlier. His attitude to CMacN was also dismissive. It was as if he thought everyone was over reacting to the risk of contracting the virus.  CMacN told the Complainant to leave his post and someone else was asked to man the door. MM understands that the Complainant was suspended by CMacN following this incident.

Gitas Stamburas gave evidence as follows;

At the end of March 2020 because the Complainant had missed the staff meeting on the Covid protocols GS was asked by JK and KK to explain to the Complainant the new Covid protocols - especially those pertaining to porters – in Russian. Which he did. He explained, that the PPE (which had been furnished to staff in March) had to be worn at all times, that hand sanitiser was to be used by the residents but that this needed to be enforced for all entering the canteen, the maximum number in the canteen was 4 diners and 6 in total, all door handles, stair bannisters, commonly touched surfaces and security gates needed to be wiped down and no visitors were allowed into the Centre. The Complainant understood this and just asked one question which was if they were supposed to be working in the canteen delivering food to residents – in their rooms – how were they, at the same time, supposed to wipe down surfaces. GS explained that the kitchen staff would also help in those circumstances but that problem should not arise that regularly in practice. GS stated that the Complainant was fully aware of the detail of the protocols in place.

Suspension of the Complainant

Following the incident on 14 April 2020, the Complainant was suspended from work by CMacN and an investigation was commenced into the events of 8 April 2020 and 14 April 2020.

The investigation was conducted between the Complainant’s suspension on 14 April and his dismissal by letter on 22 May 2020.

The investigation was conducted by Vincent Turley (VT) HR advisor to the Respondent.  

Disciplinary Investigation by the Respondent

The investigation process was that VT obtained witness statements from a number of staff who had witnessed the incidents involving the Complainant which he was then provided with and was asked to respond to these statement. Based on this VT complied a report which advised that the defence raised by the Complainant was that he had not been present at the staff briefing and he did not understand the new procedures and that the protocols were not explained to him in his native language.

The investigators’ report found that on the balance of probabilities the evidence of KK, MM and GS was consistent and more credible than that of the Complainant. He defence was that he didn’t understand the protocols but a number of witnesses said that the protocols had been explained to him on a number of occasions, both in English and in Russian prior to the incident on 8 April 2020. He had been provided with PPE – as had all staff – since 17 March 2020.  He was not wearing a mask or plastic apron on 14 April. It lacked credibility to say that because he missed the meeting on 25 March that this was why the incidents on 8 April and 14 April had occurred.

The investigator found that the conduct of the Complainant– was a failure to follow health and safety protocols and that his actions constituted a reckless disregard for the health and safety of the staff and residents. These breaches were very serious in the circumstances that prevailed and met the definition of gross misconduct as defined in the Respondent’s disciplinary procedures.

The matter was then referred to the disciplinary stage, which was under the authority of JK.

JT manager gave the following evidence:

He received the investigation report from VT dated 18 May 2020. He, CMacN and KK read the report and its findings in the office and decided that they would think about what should happen and a decision was then taken to dismiss the Complainant. JT made the decision to dismiss the Complainant.  CMacN drafted the dismissal letter dated 22 May 2020 and JT signed it. Before the letter was drafted JT discussed the decision with the owner of the business, Paddy Gillick (PG) and VT, but he later corrected his evidence to be that the conversation he had with PG was after the decision was made as opposed to having discussed the decision with PG prior to it being made.

Shane McDwyer (SMcD), porter with the Respondent gave the following evidence:

That he witnessed the Complainant on 27 March 2020 at work and he was not controlling the residents to maintain social distance, he was not controlling the numbers of residents going in and out of the canteen, he was not asking residents to use hand sanitiser, he was not sanitising the door handles and surfaces as residents went in and out. He saw JT instructing the Complainant to control the numbers and the Complainant nodded. JT waited to see that he did what he was told and he then started to correctly applied the rules.

Patrick Gillick (PD) managing director of the Respondent gave the following evidence:

PG was the appeal officer following the Complainant’s dismissal. The purpose of the appeal was to check that the investigation and dismissal decision had been carried out correctly.

PG contacted VT and obtained a copy of the investigation report. He contacted CMacN and JK and got their view on the basis upon which they took a decision to dismiss. He read through all the witness statements. He asked for further statements from witnesses.  An appeal hearing took place on 15.6.20 at which the Complainant was represented by a trade union official.

At the appeal hearing the Complainant’s position had changed. He claimed that he had not been given PPE, which he had not said at the Investigation stage. He still denied that the protocols were ever explained to him and he denied what the other witnesses said against him.

There are a considerable number of significant defects in the dismissal process conducted by the Respondent which I am under a duty to point out in this decision, even if it is to ensure that the Respondent does not fall into these errors again.

These are as follows:

-        This disciplinary process was a meeting in which the disciplinary decision maker, JT, prior to making the decision, discussed the matter with CMacN and KK, both of whom had been witnesses in the investigation process. This was an error. The decision to dismiss should not have been influenced by any witness involved in the investigation, because otherwise the decision could not be said to be impartial.

-        There was no disciplinary hearing in the disciplinary process. This meant that the Complainant was precluded from raising a defence to the decision maker prior to the decision being taken. In this way the only evidence before the decision maker was the written statements of the Complainant in the investigation stage, ie the fact finding stage, not at the disciplinary stage.

-        The Complainant was not warned, following the incident on 8 April 2020 by any member of management that if he repeated the breaches of the Covid protocols that this could be a dismissing offence. This meant that when he essentially repeated the breach on 14 April 2020 the Respondent could not say that he was on notice that the breach amounted to an act of gross misconduct. If the Respondent had considered his actions on 8 April to be an act of gross misconduct, this was not communicated to him.  

-        Prior to the hearing of the appeal PG admits discussing the matter with JK. He should not have done so. This undermined the impartiality of the appeal hearing, which was already problematic because of the impartiality of the disciplinary meeting.

-        Prior to making his decision in the appeal, PG requested and obtained additional witness statements upon which he relied to make his decision. None of these statements were furnished on the Complainant before the appeal hearing and yet were relied upon by PG in reaching his decision. The Complainant was precluded from an opportunity to counter this evidence.

These are all significant and obvious defects in a disciplinary process and if the oral evidence of the Complainant at the Adjudication were other than what it was, I suspect the outcome of this Adjudication decision would be other than it is.

Howeve,  the basis of the Complainant’s case is undermined by the evidence that he gave at the Adjudication hearing.

The Complainant admitted that he was very acutely aware of the seriousness that the Covid pandemic presented on 8 April 2020, if not before then. His children were of a school-going age and their school, like all schools in the country, had closed. He knew that the whole country was in lockdown and he admitted that he was very anxious that he might be exposed within his workplace to the risk of infection. However this evidence does not sit well with his actions at work: He admits wiped door handles (and felt that Milton not anti-bacterial solution should have been provided by the Respondent) - but doesn’t think that he needed to wipe bannisters or other door surfaces or light switches or ask residents to use the hand sanitiser as they go into the canteen or maintain social distance at congregation points.

He did not counter the evidence of the Respondent witnesses when they said one after another that he had been repeatedly instructed on the Covid protocols  - but refused to abide by them.  These briefing conversations were witnessed by other staff, in addition to the social distancing floor markings, hand sanitiser dispensers mounted on walls and Covid protocol signage on the walls.

He gave evidence at the Adjudication hearing - which he had not given during the disciplinary process - which was that PPE was not given to any staff until 9th or 10th April and that he had to buy a mask himself, the day following the incident with MM in the kitchen on 8 April. This is contrast to the other witnesses who say that all staff had been given PPE in late March 2020 and that he had been issued it but did not always wear it. By his own witness statement he said he did not always wear his mask because he had a difficulty in breathing through it and he admitted that he forgot to wear his PPE plastic apron on 14 April.

If the Complainant was as fully aware of the seriousness of the situation as he now asserts, he would not for a moment have removed his mask in this setting because to do so would have exposed not only him but those in he centre as well as his family at home. He accepted at the Adjudication hearing that on 8 April 2020 he  - like all the other staff – became aware that there was a suspect Covid positive case in the Centre. It follows that if he was as concerned about the risk of infection as he asserts then he was also would have been aware of the necessity of a consistent vigilance and a zero-risk collective approach by staff and residents to ensure that the virus did not enter and did not transmit within the Centre.

Everyone can recall the worrying weeks in March and April in 2020. Everyone can recall the frightening news stories of infections within nursing homes and cruise ships, places where often vulnerable people were confined and were waiting victims for one weak link to infect the whole building or ship. Everyone remembers too the front-line workers who were vigilant and careful and were exposed to risk in a way that those of us confined to our homes were not. The Complainant and the rest of the staff in the centre were such front-line workers.

However as the Complainant admits that he knew the gravity of the circumstances he was working in, there was no excuse to allow, especially when vaccines were then only a theoretical possibility, his guard, his efforts to prevent transmission, to come down even once, but certainly not repeatedly.

I find the Complainant’s evidence to be inconsistent. I find the evidence of the Respondent witnesses to be more credible.

I am satisfied that he was given PPE in late March.

I am satisfied that the protocols were explained to him a number of times, both in English and Russian

I am satisfied, because he admits it, that he took off his mask when he was working in the Centre, even if it was because it was difficult to breathe through.

I am satisfied, again because he admits it, that he was not wearing the plastic PPE apron on 14 April 2020.

I am satisfied that he did not consistently wipe all surfaces, ask residents to use hand sanitiser or monitor the numbers going into the canteen or congregating at its door.

And any one of these failures to act could have resulted in the transmission of the virus within the centre. And these protocols were particularly necessary, given that on 8 April 2020 all staff knew that there was a suspect positive case on site.

I am satisfied that the decision to dismiss the Complainant resulted from actions of serious and or reckless breaches of health and safety procedures which constituted gross misconduct as defined in the Respondent’s disciplinary policy. I am satisfied that these actions were acts of gross misconduct akin to a work place assault on a colleague or resident, because in a way that is exactly what it was, and that these actions, would have justified a summary dismissal in these circumstances.

It is for this reason - even though the defects in the disciplinary procedure are clearly identifiable – that I am satisfied that the Complainant was not unfairly dismissed.

CA-00039987-001 – I find that the Complainant was not unfairly dismissed.

CA-00040040-001 - This complaint was withdrawn at hearing

Dismissal – not following Covid protocols – defects in disciplinary process not fatal to defence