Complainant

Respondent

Parties

Brian  Dooley

 Marine Terminals Ltd

Representatives

Mr. F Fitzgerald Doyle instructed by Francis B Taafe & Co Solicitors

Mr Mark O’Connell, B.L instructed by Dillon Eustace Solicitors,

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-00038978-001

31/07/2020

The complainant has submitted a complaint that he was unfairly dismissed on the 30/6/2020.

He commenced employment with the respondent on the 24/10/1996.

His gross monthly salary was €7496.

He submitted his complaint to the WRC on 31/7/2020.

Preliminary Issue 1

Incorrectly named respondent.

 The correct name of the respondent is Marine Terminals Ltd. The respondent agreed to the request to correct their name.  This is reflected in the decision.

Preliminary issue 2.

The complainant’s barrister at the initial hearing on the 30 /11/2021 sought a postponement as the respondent’s documents had arrived late. Furthermore, one of the complainant’s named witnesses was sick and the second witness was on the road. It was noted that there was no medical certificate supporting the witness’s absence due to illness. As the respondent’s submission contained material already within the possession of the complainant, the adjudicator decided to proceed with the hearing.

Substantive Complaint.

The complainant ‘s case is that the respondent employed unfair procedures in dismissing him and the sanction was disproportionate.

Evidence of complainant given under affirmation.

He worked with the respondent since 1996, initially as a checker. He was promoted to the position of shift supervisor on 26/10/2013.

His work entailed operating an Empty Container Handler (ECH), a vehicle which loaded containers on and off ships.

In November 2018, following a fatal accident at the site, eighteen additional staff were recruited.  The complainant gave a statement to the Health and Safety Authority at the time concerning the fatality. At staff meetings he frequently stated that more staff were needed in order to avoid accidents.

Stated Cause of dismissal.

On 26 May 2020 a queue of hauliers was present at the terminal to collect containers. One of them, waiting in the yard to collect a container, without authorisation, mounted the platform /the running board of the ECH which the complainant was driving. here was a guardrail around the platform encircling the driver’s cab. The complainant told the driver to dismount, to which the driver responded that he was lost and didn’t know where to go. Rather than allowing him to dismount into the crowded “field “area (the area containing  trucks, vehicles and plant equipment), and run  the risk of being hit by a truck or a container ,he proceeded to the driver’s truck. He intended to show him to the terminal and the collection point. Security at the gate had sent the truck driver to the field to collect his container. The complainant was wearing a seatbelt.

 The respondent provides no training for drivers/ hauliers coming into the yard to collect containers or goods. There are no signs in the yard instructing drivers as to where they can and cannot go.

There were no Golden Rules in force or on display on the 26 May 2020.

Procedures employed in his dismissal.

He was permitted to work for two weeks after the event and up until he was suspended on 10/6/220. He asked the HR Officer if he could be represented legally at the disciplinary hearing. He was refused.

Cross examination of witness.

The witness confirmed that he was aware of the Golden Rules which are the minimum safety standards. They are mandatory.

 He was aware of the fatality in 2018.The complainant confirmed that he was aware of the company rule, contained in company document, A Risk Management Process, presented at the hearing on the 7 June, that only authorised personnel were permitted to drive the ECH, and that no unauthorised person was permitted to mount the ECH.

Alleged Protected Disclosure

The witness confirmed that he did not make a formal protected disclosure. He made complaints about safety hazards and damage to equipment on the prescribed company reports between 2019-20.

The witness stated that he believed the company wished to dismiss him because he was a witness in a court case against the company.

He asked the HR Officer if he could be represented legally at the disciplinary hearing. He was refused. He did so as the Union may not have been well disposed towards the complainant because of his previous position on a strike. The letter to him from HR dated 11/6/2020 excluded the possibility of legal representation.

The witness accepted that he should have stopped the ECH and stated he was proceeding no further. The two-way radio which he could have used to communicate the issue was broken. The witness stated that had there been proper induction procedures like the procedures used for drivers collecting containers at the port in Cork, this would not have happened.

The witness stated that upon seeing the CCTV he could not confirm if it was him in response to the respondent’s statement that he delayed accepting that it was he who was driving the ECH.

 He had expressed regret for his actions at the disciplinary hearing and at the appeal.

Mitigation.

He secured alternative employment on 2/1/2021, earning €74,000 per annum. His annual salary with the respondent was €89,959 per annum.

He presented evidence of having applied for five jobs in the period July 2020 to December 2020.

The respondent disputes that the dismissal was unfair and relies on section 6(4)(b) of the Act

The respondent complied with its own procedures.

The complainant contributed 100% to their dismissal.

The complainant drove an Empty Container Handler (ECH) and continued to service other containers in the field area, with traffic in the vicinity, while a visiting truck driver stood on the machine. Had the visitor fallen, the drop would have been approximately 7 feet. This was clearly and obviously a very serious breach of health and safety and put the person concerned, and other employees, at risk of very serious injury or death.

The complainant when confronted initially refused to acknowledge his actions. The bond of trust was broken.

Witness 1, Business Unit Manager.

 He is resident in the company’s office in Scotland. He gave evidence under affirmation.

The witness conducted the complainant’s appeal against the dismissal on the 15 July 2020.

He undertook not to refer in any way to the two witnesses who had been unable to attend at the hearing on 30/11/21.

The complainant submitted 7 grounds of appeal.

The appeal presented by the complainant was a rereading of the disciplinary hearing over the incident. The complainant had committed a serious breach of health and safety rules. He showed disregard for company procedures. He failed to follow the risk assessment protocols. Any task should have a risk assessment. The task should be graded for risk and then mitigation should be put in place. A Risk Method Statement is how you carry out a task.

After the appeal the witness had to decide how the complainant went about the risk assessment task. The witness stated he did not decide immediately; reflected and considered his previous record. He decided that dismissal was a sanction proportionate to the offence. He wrote to the complainant confirming this on 22/7/20. That was the end of his involvement.

Cross Examination.

The witness confirmed to the complainant’s barrister that there were no previous incidents with the complainant. He was a very diligent employee. He confirmed that there was no health and safety officer in situ in Dublin in May 2020, but health and safety support was available to employees in Dublin from elsewhere.

When questioned on a witness statement from the Terminal Manager that there was no traffic management system in place, the witness said that there was not a defined traffic management system but that there was a custom and practice about how traffic should move in the terminal.

The witness confirmed that on the date of the incident, 26 /5/2020, there were no formal induction procedures in place for visiting truck drivers.  He accepts that it is important for people to know where they can walk on site. The witness confirmed that there were no permanent training officers on site.

The witness got notification of the incident of the 26 May on 24 June.

The witness was not in discussion with the Terminal Manager on 25 June or afterwards. The file on the incident is held elsewhere.

The witness confirmed that the first time he had access to the group accident report file was on 7/7/202. He had no access to documents or review of incident report from 24 June to 7 July. He did not review investigation report of June until 7 July. 

The respondent Planning Operations Manager, A, alerted the company to the incident. He was looking for damage to another vehicle and he came across this incident.

The witness stated that he was unaware that the complainant had initiated legal proceedings against the Planning Operations Manager, A, who had uncovered the complainant’s actions on CCTV footage. The witness confirmed that the minute of the investigative meeting, conducted by the Operations Manager, on 18/6/2020, was not provided to the complainant until after the disciplinary hearing on the 25 June. It was agreed to consider Operations Manager B’s record of a telephone conversation with the truck driver at the second day of the hearing. The witness stated that the complainant never challenged the above statements. The witness was unable to explain why a telephone record of this conversation, created on 24/6/2020, was not available to the complainant until one day before the disciplinary hearing on the 25 /6/2020.

The witness states that what happened after the truck driver mounted the EHC is what is important. 

The witness disputes the assertion that it was a significant health and safety breach that the truck driver was at large on the site at all and walking around.

CCTV footage and not the stated bias of the respondent Planning Operations Manager A is what drove the company to dismiss the complainant.

The complainant should have stopped the ECH, opened the cab door of the vehicle door and spoken to him.

The witness confirmed that a previous breach of health and safety procedures had resulted in a final written warning for another employee, but he had not been part of that appeal so does not know the basis for that outcome.

The witness considered a final written warning, but the c complainant’s disregard for rules and regulations and initial denial destroyed trust.

Concerning the perceived disproportionate nature or selective nature of the dismissal, the witness stated that two more employees were dismissed after the complainant. One concerned an employee with 20+ years’ service who drove the same machine as the complainant and failed to wear a seatbelt. The second employee to be dismissed had committed a breach of health and safety in allowing a worker to operate without a harness.

The respondent brought in more health and safety training after the fatalities in 2018.

Witness 2 Operations Manager gave evidence under affirmation on 7/6/2022.

He gave his evidence via Webex.

 He functions as the Health and Safety Manager.

The company suffered two fatalities in 2018. They brought in what are termed the Golden Rules, minimum safety standards, which are essential for health and safety as a result of which compliance with health and safety standards has improved.

The company operates a policy of segregating people and vehicles.

The first Golden Rule is that a driver and anyone accompanying him must wear a seat belt. The driver must risk assess traffic management.  Hence if anyone approaches a vehicle, the driver must switch off the engine and approach the person who has tried to alight on to his vehicle. This rule has been clearly issued to staff. The respondent employed a massive campaign, sent out videos to all employees. supervisors and a toolbox with which to deal with departures from any of the rules.

The witness referred to the Golden Rules Management Guidance Document, submitted at the June 2022 hearing, which displayed these rules, and which featured on a very prominent billboard on the respondent’s premises.

Every employee must observe these Golden Rules and the complainant was not singled out. He stated he was not aware of breaches of these Golden Rules prior to the complainant’s breaches. These rules are sacrosanct.  He accepts that a lapse of concentration can occur.

He investigated the safety breaches committed by employee C, which the complainant identified as being indicative of a different standard being applied to him, but employee C knew what he had done and knew that it was wrong.

It is absolutely essential that employees focus on work done at a height, like being seated in a high vehicle such as an ECH. The witness referred to a previous dismissal of employee D who allowed a colleague to operate without a harness at a height.  Had he realised and admitted his wrongdoing, he may not have been dismissed. Employee D’s attitude was that he had done something the right way and would do it again. He was dismissed for flouting of the Golden Rules.

He has little knowledge of the complainant’s case other than he allowed someone to alight on to the running board of his vehicle. He considers this to be a dismissible offence.  The haulier positioned on the platform could have been hit by another vehicle; he could have been killed. And he wasn’t using a seat belt.

Cross examination of witness.

The witness stated that he could not be sure if the Golden Rules were posted on the billboard prior to the complainant’s dismissal.

The witness was unsure if that vehicle had a seat belt for passengers. This is the first reference to that fact. The witness stated he was not aware of seatbelt being worn /not being worn.

There had to be a distance of 3 metres between vehicles operating in the yard though that is not a Golden Rule.

The witness stated that he was unaware if a risk assessment had recommended a need for a reversing camera on the vehicles.

He could not confirm if there was traffic management system in place in the yard on 26 /5/2020. He was not sure if a health and safety officer was in place in Dublin.

He is unsure if the respondent provided an induction procedure for hauliers coming into the terminal.

He was not in charge of health and safety in Dublin in 2020.

Summing up the respondent’s representative stated that you do not need a billboard to know whether an action poses a serious risk to the safety of others. The dismissal was proportionate, and furthermore, the company had no option but to send a message to staff and visitors that health and safety was paramount.

The complainant has failed to produce evidence of having mitigated his loss

The dismissal is not in dispute and therefore it is for the respondent to establish that in the circumstances of this case, the dismissal was fair.

The complainant has asked me to conclude that the dismissal was unfair because of the procedures involved and the disproportionate nature of the sanction.

The respondent relies on section 6(4) of the Act which provides:

 “(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) not relevant

(b) the conduct of the employee.”

 The conduct which led the respondent to summarily dismiss the complainant was his failure to observe what are termed the Golden Rules when responding to a truck driver who, of his own volition, mounted the complainant’s EHC while visiting the yard to collect a container from a ship. It is not contested that this happened. It is the complainant’s response to this which prompted the respondent to dismiss him. The Golden Rules specify that seat belts are mandatory for both a driver and passenger in an EHC. The uninvited truck driver, positioned outside of the driver’s cabin, was not wearing a seat belt. A second breach of health and safety occurred in that an instruction found in a document, DUB-MPE -004, which is a risk assessment model, in force in the company, clearly states “no other unauthorised person may mount an MPE unit. “

It is clear that continuing to drive while an unauthorised person is positioned in the EHC is unambiguously contrary to the respondent’s health and safety rules. The third breach is the failure of the complainant to stop the EHC and demand that the ‘passenger’ dismount from the vehicle.

At the disciplinary hearing he accepted that he had erred in his handling of the situation.

The Labour Court in DHL Express (Ireland) Ltd v M Coughlan UDD173 stated that

“The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted views of what constitutes gross misconduct justifying summary dismissal”.

It is imperative that the fairness or otherwise of this dismissal is addressed on the basis of the stated grounds.

As to whether substantial grounds exist for an employee’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM”

Procedural defects identified by the complainant.

The respondent’s refusal to permit the complainant to be represented by a solicitor.

The respondent did not contest this complaint. They stated that he should have made a written request.

The Supreme Court addressed this matter in the case of in the case of Barry McKelvey v  Iarnroid Eireann / Irish Rail IESC 79 where the complainant had previously  tried to stop a disciplinary process looking into irregularities from commencing. Clarke J held that

“When considering whether any process is fair, in the context of representation, the question is not whether a particular type of representation might give some added value but whether its absence can be said to leave the person concerned without an adequate level of representation. The level which will be considered adequate will depend on an overall assessment of all of the circumstances of the process envisaged.”

The Supreme Court considered that legal representation should be the exception in disciplinary hearings. The Court went on to consider the adequacy of a trade union official representing the complainant and found in the affirmative. This is what was on offer to this complainant from the respondent. While I accept that he did not have an experienced trade union official to represent him, he presented no evidence of having made a case to the respondent that the trade union might be unenthusiastic because of his previous activities and that it was imperative, therefore, that he be represented by a solicitor.

No legal arguments were presented either before or at the hearing to demonstrate how and why his right to a fair process had been imperilled because of the absence of legal representation.

I do not find that case has been made that the absence of legal representation throughout the disciplinary process had the potential to or did, in fact, render the process unfair.

Proportionality of sanction of dismissal.

 This is a matter which I have been asked to address.

The Employment Appeals Tribunal held in the case of Bigaignon v Powerteam Electrical Services Ltd [2012] 23 E.L.R.195 that:

“The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair …… The precise terms of the test to be applied as to whether the sanction was reasonable was set out in Noritake (Ireland) Limited v Kenna UD88/1983 where the Tribunal considered the matter in the light of three questions: 1. Did the company believe that the employee mis-conducted himself as alleged? If so, 2. Did the company have reasonable grounds to sustain that belief? If so, 3. Was the penalty of dismissal proportionate to the alleged misconduct?”.

Applying the law to the facts of this case, I accept that the respondent believed that the complainant had misconducted himself. I accept that the respondent had reasonable grounds to sustain that belief given their reliance on CCTV footage which shows the breaches of health and safety rules in real time.

I accept that there were deficits in the traffic, guidance/notice systems for visiting drivers but the issue is the complainant’s response to an unanticipated situation. He conducted a dynamic risk assessment; he thought the greater danger lay in allowing the unauthorised person to dismount in an area where there was traffic and where he could have been hit by a container. He got it wrong, and I cannot quarrel with the respondent’s analysis that his failure posed a risk to himself and others and that his duty was to conform to the company’s standards especially given the previous fatality and injuries in the Terminal.

Flouting of the Golden Rules is dealt with in paragraph 8.2 of the respondent’s Golden Rules Management Guidance Document. It states”

Contravention of Golden Rules may result in a course of action subject to the disciplinary procedure”.  Section 4.3 of the same document states that

“all rules will be written in a manner which makes a breach of rule easily identifiable and that enforcement, including disciplinary action, can be taken against the persons breaking each rule.”

Breaches of the Golden Rules allow the respondent scope to as to what sanction should be enforced against the employee. Dismissal for a breach is not an inescapable conclusion. Given that fact and given the respondent’s failure to adequately factor in the complainant’s hitherto unblemished and diligent service of 24 years, and that he had been engaged in developing health and safety procedures in the workplace, I do find the dismissal to be a disproportionate response. I am further persuaded that the sanction is disproportionate by the fact that the respondent described the dismissal as a deterrent, a type of ‘early warning system’ to employees and visitors that health and safety was paramount. But it is the conduct of the employee as per section 6(4) of the Act and not the value of a dismissal as a deterrent which must inform the decision to dismiss.

In all of the circumstances, I cannot find that the decision to dismiss comes within the “band of reasonable responses”.

I decide that this complaint is well founded.

Redress.

The complainant has taken up alternative employment. He has identified compensation as his preferred form of redress.

Loss.

He took up alternative employment on 4/1/2021 at an annual salary of €70000. His loss between 30/6/2020 and 4/1/2021 is €44,979, gross. His ongoing loss from January 2021 to June 2022 is €29,938, giving a total loss of €74,917.

Mitigation

Section 7(2) (c)of the Act of 1977, as amended, requires that in considering the amount of compensation to be awarded, I must factor in the efforts made by the complainant to mitigate his loss.

The Labour Court in Philip Smyth and Mark Leddy, UDD1974 set out that employee’s obligation to mitigate loss:

“The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day while they are out of work, engaged actively in the pursuit of alternative employment. In the instant case no such evidence was produced, and the Court has no alternative but to conclude that insufficient effort was made to mitigate the losses incurred as a result of the unfair dismissal. In accordance with the requirements of Section 7 (2) of the Act this must be reflected in the compensation to be awarded”.

The complainant presented evidence of having made five applications for positions in the six months during which he was out of work. I find that he has not met the test set out in Philip Smyth and Mark Leddy.

Section 7(2) of the Act as amended provides that

“2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

I find that the complainant made a huge contribution to his dismissal by being slow to take personal responsibility for the grave risks his actions posed for those in the terminal.

I have reduced the award based on the complainant’s failure to adequately mitigate his loss, and also because his conduct amounted to a significant contributory factor in his dismissal.

I decide that the respondent is to pay the sum of €10,000 to the complainant which I believe to be just and reasonable in the circumstances.

I find the complaint to be well founded. I decide that the respondent is to pay the sum of €10,000 to the complainant which I believe to be just and reasonable in the circumstances.

Unfair dismissal; proportionality of sanction