Complainant

Respondent

Anonymised Parties

A General Operative

A Waste Management Company

Representatives

Ciaran Murphy BL, instructed by   English Leahy Solicitors

TSA Consultants

Act

Complaint Reference No.

Date of Receipt

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

CA-00053755-001

18/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00053755-002

18/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053755-003

18/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053755-004

18/11/2022

The respondent company submitted that it is a leading waste management and recycling company and has a cohort of 97 employees.

The respondent states that the Waste Collection department consists of 13 waste collection trucks, 2 skip collection trucks and 5 articulated lorries. These trucks are all driven by our fully trained and licensed drivers, and waste collection trucks are operated by our fully trained helpers/general operatives. The company operates in a safety critical industry in which the company is required to adhere to rules and regulations as set out by various authorities, including, but not limited to the Garda Síochána, Health & Safety Authorities, City and County Councils, and Environmental agencies, etc. The company is therefore held to a high standard in complying with rules and regulations such as complying to the rules of the road (Road safety Authority), adhering to safety standards as set out by the Health & Safety Authorities to ensure the safety of all employees, and regulations set out by environmental agencies to avoid any possible risk of pollution or contamination.  

It was submitted that the Company must therefore ensure that all drivers and helpers are highly trained to operate these large and extremely powerful machinery in a safe manner, as failure to adhere to the standards of health and safety required, could result in serious injuries or fatality.   The respondent asserts that one of the many safety elements involved in operating the waste collection trucks is a sensor on the back of the truck which, when engaged controls the maximum speed of the vehicle to 30km/hr and prevents the truck from travelling in reverse. This sensor is located on the rear step of the vehicle which the helper is required to mount before the vehicle/truck moves so that the truck driver knows, by an indicator light on the dashboard of the truck, that his colleague is safely located on the step of the truck and ensuring they are out of harm’s way.

The respondent states that the back of the truck also consists of a lift to lift and weigh each bin as they are emptied into the truck, safety barriers which employees are required to stand behind when the lift of the truck is in operation, and a hopper which compacts the waste deposited into the bin lorry to get maximum storage capacity.

The respondent states that employees are not permitted to sit or stand on the lift, hopper, or safety barrier at any time as this by-passes the vehicle speed limiter and also allows the truck to reverse while the employee is sitting or standing on the lift, hopper or barrier. It was submitted that employees are given very clear instruction and training on their requirement to adhere to ensure their safety and avoid any injury or fatality. 

The respondent maintains that it unfortunately is too common an occurrence where individuals are seriously injured or suffer a fatality as a result of not adhering to the health and safety requirements set out by the company, the Health & Safety Authority, and the Road Safety Authority (RSA). The respondent states that while thankfully the company have not suffered any fatalities, the company were informed by the Health & Safety Authority (HSA) in September 2022 of a fatality in waste collection in which a young man lost his life after falling from the rear of the waste collection vehicle during his shift. It is believed that in this case, the rear step of the truck had either been physically tampered with or by-passed the step sensor by not standing on the step as instructed, and therefore enabling the truck to exceed the safety speed limit of 30 Km/hr when the employee fell from the rear of the truck.  The respondent states that it is reports such as this, which remind the company to always make sure that employees adhere to these safety standards to ensure their safety, and the safety of their colleagues. 

The respondent states that the complainant worked for the company as a General Operative Helper from 26 April 2021 until the 31 May 2022, at which point he was summarily dismissed due to gross misconduct.  The respondent states that the complainant received all his training in health and safety as part of his induction into the company.

Unfair Dismissal Complaint

The respondent submits that an investigation was first initiated to establish why a domestic brown bin was found inside a recycling bin truck on the 21 April 2022. While it is common for bins to fall into the bin truck as they empty the waste into the bin truck, it is not common for a domestic brown waste bin to have fallen into the recycling compartment of the bin truck. On trying to establish why this brown waste bin had ended up in the recycling compartment, the health & safety officer, Mr. S discovered upon viewing the CCTV that there were a number of failures on the part of the complainant on this day, to adhere to the health and safety standards required. These included: 

•       Not using the rear step while the vehicle is moving, therefore by-passing the vehicle speed safety limit of 30 km/hr

•       Not using the rear step whilst the vehicle is travelling in reverse. 

•       Sitting on the safety barrier whilst the vehicle is travelling.

•       Using mobile phone whilst sitting on barrier and travelling

•       Not wearing PPE – safety boots

•       Vehicle exceeds 40 km/hr with the complainant on the rear of the truck.  

In conducting a further investigation, Mr. S discovered additional footage from another day, 5 May 2022, which he also had to question the complainant about. The respondent states that on 10 May, the complainant was invited to an investigation meeting for 13 May after his shift. This letter was hand delivered to the complainant and sent by email to him. It was submitted that the complainant was provided with sufficient notice of the meeting, was provided with the company disciplinary policy and the wheelie bin collection SOP.  In this letter inviting the complainant to this meeting, he was informed that CCTV was reviewed as part of the initial investigation and therefore this CCTV was available for him to review ahead of the meeting at an arranged time suitable for him, or alternatively at the beginning of the meeting. The complainant did not attend prior to the meeting to review the CCTV. 

It was submitted that the complainant attended the investigation meeting on 13 May 2022 and did not bring any witness or colleague with him to the meeting. The complainant was shown the CCTV at this meeting, was asked to make comment on each CCTV clip and was then asked a number of additional questions.  It was submitted that during this meeting, the complainant confirmed that he was aware of the function of the rear step. He also confirmed that he was sitting on the barrier of the truck. The respondent states that on asking the complainant about what weight the safety barrier is designed to take, the complainant was extremely dismissive and cheeky in his response to Mr. S, and Mr. S had to remind the complainant that this safety barrier is not designed to take any weight and is not designed to be sat on.  It was submitted that during this investigation meeting, the complainant confirmed that the driver was not aware that he was not on the step whilst the vehicle was travelling. 

The respondent states that Mr. S showed the complainant footage where he is seen throwing a brown bin into the recycling side of the truck. The complainant commented that the wheel of the bin was damaged, so he was not going rolling that around all the time, and as it was recyclable, he took care of it himself by throwing it into the recycling side of the bin truck.  It was submitted that Mr. S questioned the complainant about him not paying attention while sitting on the barrier as he was using his phone to take a call which was confirmed by the complainant and he responded that he would not do it, if he didn’t trust the driver but he did not know who the driver was. Mr. S also pointed out that the complainant was texting while the truck was moving and in the complainant’s response, he stated to Mr. S that he ‘got lucky that day with the CCTV’ and that he never uses his phone, only for the radio station. 

Mr. S also questioned the complainant on his non-adherence to wearing his PPE hi-vis vest or safety boots. It was submitted that the complainant’s response to this matter was that he had his jacket on earlier that morning and that it should be a rule that employees must wear hi-vis, to which Mr. S pointed out to the complainant that it is a rule that all employees must wear hi-vis. 

As part of the investigation meeting, Mr. S showed the complainant a clip of CCTV footage from the truck in which he is seen to be standing on the step but not holding onto anything as the truck moves at 35km/hr. The normal procedure for standing at the back of the truck is to have a 3-point contact, however the complainant only made one point of contact with the truck as he stood on the step with no hands. In the complainant’s response, he did not see what was wrong and stated “who else’s safety is at risk here? punish me then for it”.  Mr. S pointed out to the complainant in this meeting that if the truck were to come to a sudden stop, hit a pothole or turned a corner he would not be able to stay on the truck to which the complainant replied, “Hey yeah, look at me on the back of the truck with no hands”. Mr. S pointed out to the complainant that he had very little respect for his own safety and the complainant commented “so what if I have an accident and get hurt, that’s my business…how is that going to harm anyone else”.

The respondent states that throughout this investigation process, the complainant was very dismissive, cheeky, and disruptive at the meeting and displayed an uncaring, laissez faire attitude over the matter being discussed and in particular, his own safety.  Mr. S concluded his investigation meeting and passed the investigation documentation over to Mr. R, Operations Manager, on Thursday 19 May 2022 for him to review this matter further. Mr. R on reviewing the notes from the investigation process decided to invite the complainant to a disciplinary meeting and sent him an invite letter on 19 May 2022 for a meeting on Tuesday 24 May. 

It was submitted that the complainant attended the meeting with Mr. R on 24 May 2022 and confirmed that he did not need anyone with him at this meeting.  It was submitted that during this meeting, the complainant admitted to sitting on the “triangle”, formally known as the safety barrier, as the hopper would stop if he stood on the step which was too slow. The complainant explained that if he lifted two bins, then the hopper would be full and if you stand on the step, it stops the hopper, so the hopper is still full at the next stop. Mr. R asked the complainant if he would consider the stopping of the hopper while he was on the step was for safety reasons, to which the complainant stated that he “could not see how it could be”. It was submitted that the complainant stated to Mr. R that it is all about being faster as he did not want to be out all night. 

The respondent states that Mr. R asked the complainant during this meeting if he voiced his concerns about the hopper to anyone to which the complainant confirmed that he did not and the “easiest thing to do was sit on the triangle”.  The respondent states that Mr. R asked the complainant if he alerted the driver to the fact that the truck was able to reverse while he was on the back of it which he knew was wrong to which he stated that he did not as all he wanted to do was get the bins.  

It was submitted that Mr. R questioned the complainant during this meeting if he now knew who the driver was, despite not knowing in the investigation meeting to which the complainant replied “No, this has nothing to do with the driver, nothing. It’s all down to me”.  It was submitted that in closing the meeting, the complainant did apologise for his actions and stated that it would not happen again, however the complainant’s attitude throughout the meeting was again, dismissive of his own safety.

The respondent states that Mr. R closed the meeting, and the meeting notes were signed by the complainant. These notes were emailed to the complainant on the 24 May attached to a letter that informed him that he was being placed on paid leave as this was a very serious matter and he needed time to fully reflect on the matter before making his final decision. The respondent states that on 31 May 2022, Mr. R wrote a letter to the complainant informing him that he had taken time to reflect on everything relating to this matter and had made the decision to dismiss him on the grounds of summary dismissal due to gross misconduct. This letter informed the complainant of the reasons for his dismissal and his right to appeal this decision within 5 working days of receipt of the letter by outlining his grounds of appeal in writing to Mr. R and that he would nominate a point of appeal. 

It was submitted that the complainant wrote a letter to Mr. R on 2 June informing Mr. R of his request to appeal his decision to dismiss him, however, did not outline his grounds for appeal. Mr. R wrote to the complainant noting his request to appeal his decision and asked him to outline his grounds for appeal and he would nominate an appropriate point of appeal.  The complainant wrote to Mr. R on the 7 June outlining his grounds for appeal. On receipt of this letter, Mr. Ryan emailed Mr. O, Company Director, appointing him as the appropriate point of appeal and provided him with the relevant documentation.

It was submitted that the complainant was invited to an appeal meeting on the 15 June 2022.  The complainant attended the appeal meeting on the 15 June. It was submitted that during this meeting, Mr. O asked the complainant to go through grounds for appeal to which the complainant argued that he was never told not to do it and that his driver, “M--- never said anything” to him. 

The respondent submits that throughout this meeting, the complainant tried to place the blame on others by saying that he was never given any warning or told not to do it. He confirmed that he did not interfere with the step, but the driver never said stop to him. 

It was submitted that during this meeting, Mr. O asked the complainant if he was taking any responsibility for his actions to which the complainant admitted that he was not and continued to argue that he should have been told to stop it and that others had done this, and they were still working there. The respondent states that Mr. O corrected the complainant and informed him that previous employees had been let go over this issue in the past. 

The respondent states that the complainant also claimed that he had not received any health & safety training and only did a manual handling course to which Mr. O informed him he would look into and request this information from Mr. S regarding same. It was submitted that the complainant also added that he had used the step on previous occasions, he is good at his job and is always on time. Mr. O concluded the meeting and both Mr. O and the complainant signed agreement to the notes. 

Following this meeting Mr. O reviewed all the investigation and disciplinary documentation in detail, including the CCTV footage clips from the truck on the days in question. In addition, Mr. O, on the 22 June requested from Mr. S relevant training documents for the complainant which outlined the extent of the training he has received in relation to health & safety, and in particular the operations of the rear of the truck. It was submitted that Mr. S provided Mr. O with all the relevant documentation. The respondent submits that Mr. O reflected on the complainant’s grounds for appeal and all the information gathered throughout the investigation and disciplinary process and made his final decision on this matter; on 23 June 2022, Mr. O wrote a detailed letter to the complainant informing him of his decision to uphold Mr. R’s decision to dismiss him.   

It is the respondent’s case that this is a fair dismissal, and not an unfair dismissal as the complainant contends, as there are substantial grounds, due to the conduct of the employee, justifying the dismissal on the grounds of summary dismissal due to gross misconduct.  

It was submitted that any reasonable employer in the same position and circumstances at that time would have acted as the respondent did and the sanction of dismissal fell well within the band of reasonable responses available to the employer.

The respondent states that it was faced with a situation where they had an employee not adhering to and showing complete disregard for the health and safety requirements of his role, in such a safety critical industry. The respondent must ensure that all employees adhere to the safety requirements of the role and as required by the relevant authorities. During this investigation and disciplinary process, the complainant displayed a complete lack of accountability for his actions, and portrayed an uncaring, laissez faire attitude over the matter being discussed throughout both the investigation and disciplinary processes.

It was submitted by the respondent that the dismissal is not in dispute, therefore this case is about the proportionality of the sanction; the task is not to consider what sanctions you may impose but rather whether the reaction of the respondent, and the sanctions imposed, lay within the range of reasonable responses open to the employer at that time on the 31 May 2022. The respondent submits that any reasonable employer would reasonably have dismissed an employee in similar circumstances where there is such a blatant disregard for the company H&S procedures, the RSA safety requirements, and for his own safety. This is well established in a number of cases in this jurisdiction. The respondent cites the caselaw in Looney & Co. Limited v Looney UD834/1984, wherein the 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.”

And more recently, this test to determine the proportionality of a dismissal as a sanction is well settled was reiterated in the matter of Bank of Ireland v Reilly [2015] IEHC 241;

The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

The respondent is of the view that the complainant significantly contributed to his own dismissal and it is submitted that any other employer who was faced with a similar situation would have also dismissed the complainant on the grounds of summary dismissal due to gross misconduct. 

With regard to the investigation and disciplinary process, it is agreed that employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts provide:

(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—

to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

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) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act. 

It was submitted that in addition, S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, provides that:

The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.

The respondent submits that it conducted a full and robust process prior to making the decision to dismiss the complainant. In addition, the respondent’s representative conducted an internal appeal process in which the complainant was provided with the ability to put forward his grounds for appeal which were thoroughly assessed and taken into consideration. The respondent asserts that its representatives conducted a fair and thorough process in line with the code of practice on Grievance and Disciplinary Procedures. 

CA – 00053755 – 002: Minimum Notice

The respondent states that it terminated the complainant’s employment due to gross misconduct, and therefore notice does not apply as he was summarily dismissed.  It was submitted that the complainant was aware of this policy which is contained in the employee handbook, which the complainant signed receipt and acknowledgement of on the 22 April 2021.

 CA – 00053755 – 003: Hours of Work

The respondent has examined the complainant’s annual leave entitlements and confirmed that he was paid out all his public holiday entitlements during his employment. 

CA – 00053755 – 004: Hours of Work

The respondent states that it has examined all the public holidays which fell during the complainant’s employment and confirmed that he was paid out all his public holiday entitlements during his employment. 

The complainant states that he commenced employment at the respondent's facility on 1 April 2021 and was dismissed on 31 May 2022. The complainant states that he was unfairly dismissed and that there was little, if any, proportionality applied to the matter. The complainant also claims that he did not receive his statutory entitlement to minimum notice as per the Minimum Notice & Terms of Employment Act and that he has still not received his outstanding annual leave and public holiday pay .

In relation to his unfair dismissal complaint, the complainant states that an invitation, by way of letter and email, was issued to him on 10 May 2022 to attend an investigation meeting on 13  May. The complainant states that he was required to inform management within two days of his intention to partake in the meeting and whether he would be bringing a witness with him. The complainant states that he was invited to view the CCTV prior to the meeting but did not take up this offer and did not view same.

The complainant states that he attended the meeting and admits that he was not co-operative during this meeting and that he would not name the driver concerned but on a later date he did so as he did not wish to get this person in trouble. The complainant states that the driver, in the meantime, handed in his notice and subsequently left the company.

It is the complainant’s case that the driver knew about the breaches and had no problem with same. It is also the complainant's case that no physical training of the role was carried out during Induction but despite this the respondent submits that experienced workers already working in that role would have trained the complainant in the early days of his employment with the company,

The complainant asserts that the respondent has confirmed the driver would have been able to see the rear truck Operative by way of CameraMatics, which includes rear view cameras that allow the driver to see his co-worker at all times.

The complainant submits that this is not a case where he seeks to deny that he breached protocol on the days in question and he accepts now that what he did was wrong. However, it was submitted that what is equally regrettable is the attitude of the respondent towards the complainant during the meetings and interviews about the alleged breaches of Health & Safety and the respondent’s stance regarding his attitude at the meeting. The complainant submits that this is due to the fact the respondent failed entirely to consider a number of very important points before summarily dismissing him.

The complainant states that the respondent did not make any allowance for the fact that he has a  neurodevelopmental disorder and learning difficulty. The complainant states that he has had ADHD for all of his life and was only diagnosed in 2006. He has had to take medication and underwent therapy, while it is also clear that he has severe difficulties with reading and writing and this is evidenced from the complainant’s letters to the respondent so they were effectively on notice of this at least from that point.

The issue of reasonableness is at issue. The complainant states that the respondent knew or, should have known about his difficulties and made allowances for same, both in how it trained him and in terms of how it handled its disciplinary procedures. The complainant states that based on the respondent's own submissions, it is known that all communication to the complainant was by way of letter and email. The complainant states that there is strong evidence with regard to his issues with reading. It was submitted that if the respondent did not know this previously, then it is guilty of not doing its due diligence or acting reasonably, and must, in essence, take the complainant as it finds him. The complainant states that even if this point was not applicable, the respondent was effectively on constructive notice of the reading and comprehension issue from this date onwards, 7 June (date of letter sent by the complainant to the respondent).

The complainant completely refutes that the respondent acted proportionally. It was submitted that in the case of Rooney v. Iron Mountain Ireland Ltd. UD638/2004, the complainant drove a forklift owned by the respondent up a public side street. The respondent contended that this behaviour amounted to gross misconduct as the complainant knew that the driving of the forklift on a public lane was contrary to the company instruction and not covered by the policy of insurance. The EAT held that a severe warning would have been adequate and the dismissal was disproportionate and unfair. The complainant submits that the same outcome should follow in this case.

The complainant states that he was not adequately trained.  He states that all training was by co-workers on the job, as it were, who do not have adequate or any qualifications for training.  He states that no aptitude tests were carried out during the selection process to assess the candidate's suitability to the position. The complainant submits that a person with ADHD is someone susceptible to impulsivity and an aptitude test would surely have discovered the issue.

The complainant states that the respondent failed to take into the account the fact that he has a recognisable and diagnosed disability and a learning difficulty. The complainant states that he has severe difficulties with reading and writing and this is evidenced from the complainant’s letters to the respondent and therefore the respondent was effectively on notice of this at least from that point. Yet, the respondent chose to invite the complainant to a disciplinary process by way of letter and email only. The complainant states that he was not aware of his rights to have a witness attend with him, or that he could view CCTV. The complainant states that the respondent is at fault for not doing any due diligence prior to employing him or in the year he was working with the respondent.

The complainant states that any amount of written documents given to someone with huge difficulties with reading and writing should follow with an in-depth discussion about what is entailed. The complainant instructs that he was given very brief instruction about how to operate the lift, step, hopper and so on during induction and that the training given on induction was inadequate.

It was submitted by the complainant that his dismissal lacked any proportionality. There were no previous warnings, either verbal or written, given to the complainant. The complainant cites the caselaw in Rooney v. Iron Mountain Ireland Ltd., UD638/2004, Carey v. Docket and Form International Ltd, UD302/2004 and Brady v. Saint Gobain Pipelines Ltd UD536/2004 in support of his case in this regard.

CA - 00053755 – 002: Minimum Notice

The complainant states that he did not receive his statutory entitlement to minimum notice.

CA – 00053755 – 003: Hours of Work

The complainant stated that he has not received his outstanding annual leave entitlements and that the respondent is in breach of the legislation in this regard. 

CA – 00053755 – 004: Hours of Work

The complainant states that he has not received his entitlement to public holidays and that the respondent is in breach of the legislation in respect of same.

CA – 00053755 - 001  Unfair Dismissal

Under the Unfair Dismissals Act, it states at section 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.

In the case of Looney v Looney, UD83/1984, the EAT referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 states that “the fairness or unfairness of a 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.”

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances. The EAT also highlighted in Gearon v Dunnes Stores Ltd, UD367/1988 that the complainant in that case had an entitlement to have her submissions “listened to and evaluated”.

In relation to the issue of “Procedural v Substantive Justice”, in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”.

In the within matter, I am satisfied that the complainant was made aware of the severity of the breach and that disciplinary action may include termination of his employment. I note that each stage of the process was conducted by a different person (investigation through to disciplinary). The complainant was afforded the right of representation at each stage of the disciplinary process but chose not to bring anyone with him. The complainant was shown the CCTV footage in relation to the incidents. The complainant was provided with an opportunity to appeal the decision to terminate his employment.

Having examined the manner in which the respondent conducted the process, I find that the procedures adopted fell within the requirements of a fair process at all stages.

While the complainant has alleged that he did not receive adequate training for his role, I note based on the evidence given by witnesses for the respondent that on the job training was provided to the complainant by more experienced employees at the commencement of the complainant’s employment which involved practical on the job demonstration with regard to the duties required. Based on the evidence heard, I note that the respondent highlighted to the complainant the importance of the requirement to adhere to the health and safety procedures.

The respondent has stated that the first time that it was aware that the complainant had ADHD was a few days prior to the hearing. This issue was not disclosed in the initial form and at no stage during his employment with the respondent. With regard to the complainant’s assertion that the company should have been on notice once it received correspondence from the complainant with spelling mistakes; the respondent makes the point that most of the roles are that of general operative as it is a waste management company. The respondent states that it is not an uncommon occurrence for the company to receive written correspondence with poor grammar, spelling and handwriting and in the modern world of texting and shorthand abbreviations and that such issues are very common.

I am very cognisant from the evidence given at hearing that the respondent operates in a highly safety critical industry in which it is required to adhere to rules and regulations thereby being held to a high standard as set out by various Health and Safety Authorities in adhering to health and safety requirements where the safety of all employees is of paramount importance.  I am mindful of the evidence given by the respondent with regard to a recent tragedy in a different region of the country in which a person lost his life off the back of a bin truck lorry and the reasons why adherence to health and safety protocols are critical factors in the industry.  

Based on the evidence heard, I am satisfied that the complainant displayed a complete lack of accountability for his own actions and disregard for his safety and that of other employees. I find that given the serious nature of the breach and the fact that the complainant did not take appropriate accountability for his actions throughout the investigation and disciplinary processes that the respondent considered that the bond of trust was irrevocably broken between the parties.

The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

Having heard all the evidence and examined all of the written documentation submitted, I find that the respondent’s decision to dismiss was within “the bands of reasonableness” and was proportionate. Consequently, I find that the within claim for unfair dismissal is not well founded.

CA - 00053755 – 002: Minimum Notice

I find that the complainant was dismissed on grounds of gross misconduct and therefore no notice is applicable in circumstances of a summary dismissal. This claim is not well-founded.

CA – 00053755 – 003: Hours of Work

I find that no evidence was provided by the complainant to substantiate the claim that the respondent did not pay the complainant his annual leave entitlements.  In those circumstances I find that the complainant has not established a breach under the Act and therefore I find that this complaint is not well-founded.

 CA – 00053755 – 004: Hours of Work

I find that no evidence was provided by the complainant to substantiate the claim that the respondent did not pay the complainant his public holidays which fell during the complainant’s employment. In those circumstances I find the complainant has not established a breach under the Act and therefore I find that this complaint is not well- founded.

CA – 00053755 – 001: Unfair Dismissal

I find that the within claim is not well founded. I find that the complainant was not unfairly dismissed.

CA - 00053755 – 002: Minimum Notice

I find that this complaint is not well-founded.

CA – 00053755 – 003: Hours of Work

I find that this complaint is not well-founded.

 CA – 00053755 – 004: Hours of Work

I find that this complaint is not well-founded.

Unfair Dismissals Act, Organisation of Working Time Act, Minimum Notice