ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00034146

Parties:

Complaint/Dispute:

Date of Adjudication Hearing:  13/04/2022

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance withSection 13 of the Industrial Relations Acts 1969following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

The Complainant’s duties as a Warehouse Operative involved the sorting of parcels for distribution. On 7 July 2021, the Complainant was working with another co-worker sorting through parcels in a trailer and placing them on a conveyor belt, which transported the parcels out on to the warehouse floor.

Given the environment at the time, July 2021, and the uncertain and critical nature of the Covid-19 pandemic, the Complainant was required to wear a mask in the course of his duties. On 7 July 2021, the Complainant was wearing his mask pulled down to his chin exposing his mouth and nose while working alongside a co-worker. The Complainant had been informed by his shift manager on at least two occasions that this was a breach of health and safety protocols and was instructed to wear his mask correctly. Following the second instruction to pull his mask up and wear it correctly, the Complainantlost his temper and began to shout at his shift manager. The Complainant used vulgar language in his communications with the manager and told him to “Fuck himself” The Complainant then proceeded to leave the trailer and approached the management desk on the main warehouse floor, at which the shift manager and another employee were sitting. The Complainant continued to argue with the shift manager and a second confrontation ensued. The shift manager invited the Complainant to a meeting in his office so as to discuss matters privately and not on the warehouse floor. The Complainant refused to attend this meeting and to follow his manager’s instructions. This fact is acknowledged by the Complainant in his claim form as well as the fact that the Complainant said to his Manager “would he ever fuck off”.  Following this incident, the shift manager immediately attended at the hub manager’s office. He reported the incident and informed the manager of the Complainant’s lack of compliance with health and safety protocols and his use of abusive, threatening and vulgar language. The hub manager immediately proceeded to investigate the incident and took statements from employees who were present at the time. The witness statements corroborate the position of the Respondent and confirm that the Complainant was not wearing his mask correctly and that he was aggressive and used inappropriate language in his communications with management. The Complainant was invited into the hub manager’s office where the manager outlined the allegations that had been made by the shift manager. The complainant denied he was wearing his mask incorrectly. After considering the Complainant’s responses and version of events as outlined by the shift manager, which was corroborated by other witnesses, the hub manager concluded on balance that the Complainant had seriously breached Covid-19 protocol in not wearing his mask correctly. He noted to the Complainant that they had already had the same conversation in relation to mask wearing a number of times and there had been no improvement in his behaviour. He statedto the Complainant that health and safety is a matter of the upmost seriousness.Furthermore, it was explained to the Complainant that aggressive behaviour and inappropriate language cannot be tolerated on the warehouse floor. It was considered that his conduct was so serious in the level of abuse and serious breach of health and safety that could result in harm or serious illness in a fellow worker that such conduct amounted to gross misconduct in respect of which the hub manager told the Complainant there and then that his employment would, unfortunately, be terminated immediately. A letter confirming termination was issued outlining the reasons for dismissal. 

On commencement of employment the Complainant was furnished with a fixed term contract of employment for a period of 3 months. This contract was extended for a further

period of 3 months in March 2021. The standard probationary period for all employees is

12 months.  The Complainant was on probation at the time the incident leading to his dismissal. During the period of probation an employee’s work performance and suitability is assessed, and

if the employee’s work performance is not up to the required standard or the employee is

considered to be unsuitable, the Respondent can either take remedial action or terminate

the employment, without recourse to the disciplinary procedure. The Respondent was entitled to assess the Complainant’s conduct and performance during this period to assess his suitability for continued employment. The serious misconduct by the Complainant on 7 July 2021 demonstrated to the Respondent that the Complainant’s blatant disregard for health and safety during a pandemic and his unacceptable use of abusive language to management meant his employment could not

continue. The Respondent was entitled to make this assessment during the probationary

period and the Respondent’s stepped disciplinary procedure did not apply to employees on probation. 

In response to the Covid-19 pandemic, the Respondent has set a clear response plan in place. The plan clearly states that employees must adhere to all company procedures and best practice including co-operating in maintaining the control measures put in place to help prevent the spread of the virus. Among the control measures set out in the plan include the use of Personal Protective Equipment (PPE) and respiratory etiquette to other workers.

The Respondent’s Covid-19 Risk Assessment Form clearly states that employees must wear a mask when working in the warehouse. Furthermore, employees were advised that the most important actions they can take to protect themselves from Covid-19 is to exercise regular hand-washing, good respiratory hygiene and follow social distancing guidelines.

The Respondent’s toolbox talk on Covid-19 Secure Workplace reiterates the fact that face coverings were compulsory in the Respondent’s facilities, ‘no ifs or buts’. Detailed advice and instructions were provided to employees as to how to wear such face coverings correctly, ‘completely cover and worn over the mouth and nose’, how to care for face coverings and how to remove face coverings correctly and responsibly. The Respondent clearly state that ‘face coverings are more effective when they achieve a snug fit around the nose and mouth’.

Management was trained in requiring employees to wear masks and employees were informed of such rules at staff meetings. In addition, daily safety messages were displayed on notice boards in the canteen areas of each of the Respondent’s facilities. Such messages included the Respondent’s 5 Covid-19 pillars – face coverings, social distancing, hygiene especially ‘hand-washing’, frequent cleaning of high contact areas and temperature control on entry to the depot. Safety messages and notices were issued by the Respondent repeatedly which emphasised the importance of mask wearing and the fact that this was a compulsory requirement in the workplace.   On 7 July 2021 the Complainant was working in close proximity to other workers in a trailer. The Complainant was informed of the correct manner in which he was to wear his mask and despite this he continued to wear his mask on his chin, thus leaving his mouth and nose exposed. The Complaint was advised at least twice on this occasion to wear his mask correctly.

The Complainant’s actions were in direct contravention of the direction that had been given to him by his manager and health and safety procedures which were put in place by the Respondent in response to the critical Covid-19 situation at that time. It should be noted that on the date in question, Covid-19 vaccines were not widely available, and the country was still very much on high alert as to the dangers associated with the highly transmissible virus.  The Complainant states in his claim form that there was a common trend in the workplace of people wearing their masks below their nose. This is factually inaccurate and wholly denied by the Respondent, who as is the Complainant’s case took such matters very seriously in July 2021. It is submitted that the Complainant was working at the back of the trailer, which is an enclosed space, at the time he was asked to wear his mask correctly. It would not be possible for the Complainant to have visibility across the warehouse floor when working in such a space. Therefore, the Complainant’s contention that he saw the shift manager walk by six other workers not wearing masks at the time is not credible nor is it true. It is furthermore submitted that the manager referred to by the Complainant Mr W was wearing a mask at the time the Complainant approached the desk.

The Complainant states he told another manager that he would like to make a complaint about the shift manager’s behaviour, however, this is disputed by the Respondent. The manager in question, was in his office and not on the warehouse floor at the time. It is the Respondent’s position that the shift manager first raised the issue with the hub manager who then invited the Complainant to his office to discuss the incident. The Complainant had been warned on previous occasions where he had exhibited aggressive behaviour towards his manager. Two weeks prior to the incident in question the Complainant became aggressive when he was told that playing music on the warehouse floor was not permitted for health and safety reasons due to moving forklifts and machinery. This is further evidence of the Complainant’s disregard for health and safety in the workplace.

It is further submitted that the hub manager did not state that the shift manager treated the

Complainant unfairly and if anything, the opposite was stated. He reminded the Complainant, if he had any issue with anyone, he was free to raise it with him, but the Complainant never did. The Respondent does not have a landline number and therefore the claims made by the Complainant that he rang the HR Department are not possible in the circumstances. In summary, the Respondent submits that the dismissal of the Complainant on the grounds of gross misconduct was not unfair for the reasons outlined above. The Complainant was on probation at the time of the incident, the Respondent was entitled to terminate the Complainant within the probationary period without recourse to the internal procedures where the Complainants aggressive conduct and disregard of

 health and safety regulations during the pandemic, amounted to gross misconduct. The response of the Respondent was fair and proportionate in all the circumstances and they were entitled to terminate the Complainant for the reasons outlined in this submission.

Recommendation:

The Complainant was dismissed during his probationary period for failure to follow Covid-19 procedure and for use of abusive language.  The Respondent argues that it had the right to dismiss the Complainant during his probation due to various matters including suitability for the job.             The Complainant contributed significantly to the situation in which he found himself by his previous behaviour and his behaviour and attitude to the Respondent’s managers.  In relation to fair procedure and due process, the Labour Court has found in Beechside t/a The Park Hotel, Kenmare -and - A Worker LCR 21798 that the Complainant in that case was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000.  In that case the Court found

“Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment.  However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.”

In this instant case, I find that due process and fair procedures were not applied.  The Complainant was not given the right to a fair hearing, or to be represented and I find the Complainant was unfairly dismissed.

Given the finding above that the Complainant by his behaviour has contributed significantly to his situation I recommend that the Respondent pay to the Complainant the sum of €1,600 compensation being the amount of 4 weeks’ pay.

Dated: 09-06- 22 

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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