Complainant

Respondent

Parties

Shane Finnegan

Darland Enterprises Limited

Representatives

Hugh O’Donnell, BL

Stafford Management Consultancy Services

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-00044259-001

17/05/2021

Duplicate complaints have been submitted against the respondent, Darland Enterprises Limited and against a parent company, JP Ryan Limited.  As a preliminary matter, for the purpose of identifying the correct respondent to these complaints, I am required to establish who Mr Finnegan’s employer was.

Confusion has arisen because of the practice of inter-changing the names of the respondent on various documents and letters issued to the complainant.  For example, a terms of employment document issued in November 2014 states that the employer is Darland Enterprises.  Safety training certificates are in the name of Darland Enterprises and JP Ryan.  Mr Stafford’s submission to the WRC is “on behalf of JP Ryan Limited,” although at the first day of the hearing on August 30th 2021, he confirmed that the name of the employer is Darland Enterprises Limited.  The letter of dismissal issued to the complainant on March 10th 2021 is on the headed paper of JP Ryan Limited.  In response to a letter from Ms Fee on September 9th 2021, Mr Stafford again confirmed that the name of the employer is Darland Enterprises Limited.

At the opening of the resumed hearing on May 23rd 2022, the managing director, Mr Ryan, said that Darland Enterprises Limited is a wholly-owned subsidiary of JP Ryan Limited.  He said that Mr Finnegan was one of six employees of Darland Enterprises Limited.  JP Ryan Limited has around 70 employees.  Another subsidiary company is Tankclean Services Limited, also has six employees.  Training provided to the employees of the three companies is paid for by JP Ryan Limited.  The complainant’s payroll and Revenue details show that he was an employee of Darland Enterprises Limited.

Based on the evidence of the managing director, Mr Ryan, and the payroll and Revenue documents provided to me by Mr Stafford after the hearing on March 23rd 2022, I am satisfied that the complainant was employed by Darland Enterprises Limited.  Not disadvantage arises for the complainant because certain documents, particularly training certificates, were issued to him in the name of the parent company, JP Ryan Limited.  I find that the respondent is Darland Enterprises Limited.

The respondent is engaged in the transport of chemicals using heavy goods vehicles.  The complainant is a welder and he joined the company in March 2006 to do container repairs.  During the course of his employment over 15 years, he also worked at repairing chemical tanks.  By March 2021, he was earning €670 per week.  His dismissal followed an investigation into his failure to use a gas meter when he was working inside a tank.

The complainant claims that the managing director was motivated to dismiss him because he had an accident at work in December 2019, resulting in injuries to his eyes and face.  The respondent’s case is that the complainant’s dismissal was the outcome of an investigation into a serious breach of a health and safety procedure, which, in their view, was gross misconduct. 

The Dismissal of the Complainant

The respondent’s submission refers to a disciplinary investigation in January 2020 into the complainant not wearing personal protective equipment, not observing health and safety precautions while working on a valve and not properly heating a tank before it was returned to a customer.  He received a final written warning over these incidents, which was to remain on his file for 12 months.  The final written warning letter also stated,

“If at any time in the future, you breach any health and safety rule, you will almost certainly be dismissed.”

More than 12 months later, in March 2021, the respondent’s general manager, Eoghan Whelan reported that the complainant’s gas meter was being serviced and that he had been working in a tank during the previous week without a gas meter.

The complainant was suspended from work with pay, pending an investigation into his conduct.  On March 10th, the managing director held a disciplinary meeting.  He was accompanied at the meeting by the general manager, Mr Brian Gaughran.  The complainant did not bring anyone with him, although he was warned of the possibility that the outcome of the meeting was that he would be dismissed, and he was advised to be accompanied.  Later that day, Mr Ryan wrote to the complainant and informed him that he was dismissed because of “blatant disregard for health and safety.”  The complainant was advised of his right to appeal against the decision to dismiss him, but he did not appeal.

Evidence of the Managing Director, Mr Noel Ryan

Mr Ryan’s business is the transport of dangerous chemicals in bulk.  His customers are chemical companies all over Ireland.  When product is delivered, the customer sends back the empty tank for re-filling.  Mr Ryan said that working on chemical tanks is governed by certain by bye-laws and regulations and that his employees receive safety training from third party providers.  

Mr Ryan said that, almost 20 years ago, his was the first company in Dublin Port to employ a health and safety officer.  He said that the first health and safety officer retired after almost 15 years and they now have a new person in the role.

Mr Ryan described the safety training necessary for working on tanks; vacuum testing, temperature probing, tank dipping, safe systems of work in confined spaces and working with dangerous chemicals.  He said that employees receive in-house induction training when they start work and ongoing regulatory training from then on. 

Mr Ryan said that when a tank is discharged at a customer’s premises, it is brought back to his depot at Dublin Port for cleaning and for a new consignment of product.  The complainant’s job was to check that tanks are in a proper condition for re-filling.  Occasionally, a valve would be found to be defective and the complainant has to enter the tank to repair the valve.  He is required to use a gas meter which registers the gas in the tank to determine if it is safe to enter.  Mr Ryan said that, on three occasions, with two different providers, the complainant was trained in safe systems of working in tanks. 

On the afternoon of March 4th 2021, the complainant was about to check a valve on a tank that had been returned from Tankclean Services.  He informed the transport manager, Eoghan Whelan, that there was a solvent smell in the tank and Mr Whelan arranged for the tank to be sent back for a second cleaning.  When he informed the complainant that the tank would be cleaned and vented overnight and sent back for servicing the next day, Mr Whelan discovered that the complainant hadn’t got a gas meter, and that the meter he normally used was being serviced.  Mr Whelan also established that, during the previous week, the complainant had been working inside a tank and that he had not used a gas meter to ensure that the tank was safe to enter.

Cross-examining of Mr Ryan

Mr Ryan did not accept the assertion by Mr O’Donnell that the complainant never received a copy of the health and safety regulations.

Mr O’Donnell referred to the accident that the complainant had in December 2019 which resulted in a personal injury claim.  Mr Ryan denied that relations between him and the complainant deteriorated because of this.  Before his dismissal, Mr Ryan said that the complainant gave no indication that he was taking a personal injuries action against the company. 

The complainant joined the company in 2006.  He did induction training before he joined the company and when he started.  Since then, he has done various training courses, particularly training in working in confined spaces, which he did on three occasions.  Mr Ryan referred specifically to a training course on June 21st 2019, “Safe Systems of Work in Confined Spaces.”  Mr O’Donnell said that the training doesn’t appear to be specific to the work carried out at Darland Enterprises.  Mr Ryan replied that the training was specifically about how to work safely in a tank.

Mr O’Donnell suggested to Mr Ryan that, after he had the accident in December 2019, the complainant was bullied by him and other managers.  Mr Ryan did not accept this.  He said that the complainant got a Christmas bonus in December 2019 and that he had not heard about any allegation of bullying before this hearing.  Mr Ryan said that the relationship between the complainant and the company did not change after the accident.

Mr Ryan said that gas meters must be calibrated annually by the servicing company.  The complainant had access to one meter and the Tankclean Services staff had the other one.  When one meter was being calibrated, the other one was used.  Mr Ryan said that it’s not an everyday occurrence to get into a tank.  He said that the complainant was “intimately familiar with Tankclean Services” and knew where to find the meter.  He said that the two meters were shared between Darland and Tankclean Services, which are located about 500 metres apart.

Mr O’Donnell said that the complainant will say that the use of gas meters in the company was fairly recent, but Mr Ryan did not accept this.

On March 4th 2021, Mr Ryan said that he heard that the complainant reported that the tank he was to work on was smelly.  He said that some products are difficult to get rid of and that the complainant rightly decided that the odour had not dissipated.  Mr Ryan said that he didn’t smell the tank, but that he instructed Mr Whelan to leave it open for the night and for the complainant to work on it the next day.  He said that he told Mr Whelan to tell the complainant to be sure to use a gas meter.

Mr O’Donnell referred to the company’s disciplinary procedure, a copy of which was produced at the hearing.  Mr O’Donnell asked Mr Ryan about the duration of a written warning.  Mr Ryan replied that his reading of the procedure is that the duration of the warning is at the discretion of the company.  He said that the warning issued to the complainant in February 2020 was not reviewed.  He said that the complainant “was on my radar” regarding health and safety issues.  Previously, he was not wearing the correct hi-viz jacket, he didn’t use the proper eye protection, and he falsely signed a certificate stating that a tank was properly heated before it was returned to a customer. 

Mr Ryan said that he asked his general manager, Brian Gaughran to investigate the report that the complainant had been working on tanks for several days without a gas meter.  He accepted that Mr Gaughran was involved in the investigation and the disciplinary meeting.

Evidence of the Transport Manager, Mr Eoghan Whelan

In his direct evidence, Mr Whelan said that he was instructed by Mr Ryan to tell the complainant to make sure to use a gas meter when he was checking the tank after it was cleaned for the second time on March 5th.  He said that the complainant told him that the gas meter he normally used was out for repair and that he hadn’t been using a meter for the previous week.

Cross-examining of Mr Whelan

In cross-examining, Mr Whelan denied that he told the complainant to get into the tank without a gas meter.

Mr Whelan recalled the conversation he had with the complainant on March 4th 2021, when the complainant told him that there was a smell of solvent from a tank he was about to work on.

Mr O’Donnell referred to the email that Mr Whelan sent to Mr Ryan and Mr Gaughran at 11.20am on March 5th.  He said that no one asked him to send the email and that he thought that it was important to record what happened.  Mr Ryan was one of the recipients of the email and Mr O’Donnell put it to Mr Whelan that it was strange to quote what Mr Ryan had told him in the email he was sending to him.

Mr Whelan reported that Mr Ryan told him to remind the complainant to use a gas meter.  Mr O’Donnell asked if it was a regular occurrence for Mr Ryan to give him instructions to tell people to use personal protective equipment (PPE).  Mr Whelan replied that “it’s good practice to remind people to use PPE.”

Evidence of the General Manager, Mr Brian Gaughran

Mr Gaughran said that he was asked to investigate breaches by the complainant of safety procedures in relation to working in tanks.  As part of his investigation, he spoke to the complainant and to the managing director, Mr Ryan and the transport manager, Eoghan Whelan.  He said that the meter that the complainant normally used was sent for repair on February 16th 2021.  Mr Gaughran said that he checked the complainant’s training record and he was satisfied that he had been trained in safe entry and working in confined spaces.  He noted that the complainant received a final written warning regarding safety breaches in February 2020.  Mr Gaughran said that a meter was available to the complainant for use in the week leading up to March 4th, but that he did not use it. 

Cross-examining of Mr Gaughran

Referring to the disciplinary meeting on March 10th 2021, Mr Gaughran said that his role was to listen to the complainant and to take notes.  A meeting had been scheduled for March 9th, but the complainant didn’t turn up.  Mr Gaughran said that he had received the email from Eoghan Whelan on March 5th.  He concluded that there had been a serious breach of safety procedures which could have caused the complainant to lose his life.  Ultimately, the decision was for Mr Ryan to make. 

Mr O’Donnell asked Mr Gaughran if the disciplinary process comprised one stage or two stages.  Mr Gaughran said that they had the evidence from Mr Whelan, and then there was a disciplinary meeting.  He said that they got the email from Mr Whelan and then conducted an investigation.  Mr Gaughran agreed that Mr Ryan asked him to carry out an investigation.  He said that he spoke to the complainant on March 5th.  Mr O’Donnell challenged Mr Gaughran on this and he said that he spoke to the complainant on March 5th for the purpose of suspending him.

Between February 16th and March 4th, Mr Gaughran said that it wasn’t possible for the complainant to use his gas meter at work.  Mr O’Donnell said that there was another meter, and there is no evidence that this wasn’t used.  Mr Gaughran said that the complainant told Mr Whelan on March 4th that he hadn’t got a meter.  Mr O’Donnell said that the complainant’s evidence will be that he worked only once on a tank without using a meter.

Mr Gaughran said that his opinion, which he shared with Mr Ryan, was that the complainant had engaged in a serious breach of safety regulations.  He said that the February 2020 warning was part of the consideration, but that irrespective of that issue, this incident was very serious.

Mr O’Donnell asked Mr Gaughran if it is his opinion that every time someone enters a tank without a gas meter, they should be dismissed.  Mr Gaughran said, “absolutely, subject to a disciplinary meeting.”

Mr Gaughran said that he refuted any allegation that the complainant was bullied.  He said that he never heard Mr Ryan speaking to him in a derogatory manner.

The following is a summary of the training records included in the respondent’s book of documents:

Conclusion

Mr Stafford said that dismissal might be considered to be excessive for a first incident of a breach of a safety procedure, but the complainant had shown disregard for the rules previously.

In a written submission provided to me in advance of the hearing, Mr O’Donnell asserted that the sanction of dismissal was disproportionate to the conduct for which the complainant was dismissed and that the disciplinary process was flawed.  Mr O’Donnell referred to the decision of the former Employment Appeals Tribunal in Dunne v Harrington[1] where it was held that an employer may investigate an incident personally in a fair and reasonable manner or rely on the reports of others and by giving the employee an opportunity to provide rebutting evidence.

Mr O’Donnell submitted that the respondent did not act as a prudent and concerned employer and that the decision to dismiss the complainant was unreasonable in the circumstances.  He argued that the respondent failed to have regard to fair procedures, to take account of mitigating factors and to and to consider some other sanction short of dismissal.

Evidence of the Complainant

The complainant recalled that he came to Ireland from Canada in 2003 and he started working for the respondent in March 2006.  It is his view that JP Ryan was his employer.  (See above, my conclusion that Darland Enterprises was his employer).  The complainant said that he is a welder-fabricator and that he worked on containers.  He said that he has no formal training of any sort and that he is not licensed to work on high pressure steam fitting.  He said that Mr Ryan was aware of this.

The complainant said that part of his job was to work on tanks.  The procedure is to have a man on top of the tank, watching the ladder.  He said that an air tester was then introduced, but he couldn’t recall precisely when.

The complainant said that the company’s attitude to health and safety is, “if it takes too long, cut your corners and get it done.”  He said that there were leaks in a high-pressure steam line for months.  Whenever a Dublin Port health and safety advisor arrived on the site, the complainant said that he wasn’t allowed to do his job.  He referred to the accident he had in December 2019, when he was brought to hospital after he was sprayed with caustic acid.  He was out of work for three weeks and when he returned to work, he was issued with a warning, because the tank was under-heated.

After the accident, the complainant said that he was subjected to “constant mulish behaviour from the office staff.”  He said that Mr Ryan told him that he wanted him gone.

On July 16th 2020, the complainant said that a spanner he was using slipped and he cut his finger on a sharp piece of steel.  He reported his injury to the health and safety officer and he went to the company doctor.  He was advised to take a week off, but Mr Ryan said that he could do light duties.  He then got an infection in his finger and he went back to the doctor, who repeated the advice to take a week off.

Referring to the incident that resulted in his dismissal, the complainant said that, on March 4th 2021, he received a tank that was leaking.  He did a vacuum test.  He said that there was “a big push” for the tank to be ready to fill and he was put under pressure.  He said that he told the driver who was bringing the tank to be cleaned to make sure it was washed because a man was going into it.  He said that his air tester was being calibrated at the time.  He said that he relied on the driver to tell the lads in Tankclean Services to make sure the tank was clean.  He said that there was an air tester in Tankclean Services, but not beside him.

The complainant said that he did the repair and got out.  Mr Whelan said something to him about not having the air tester and he told him that the tank was done.  Mr Whelan asked him if he had the tester, but the complainant said that he knew it was being calibrated.  The next day, the complainant collected the air tester from Tankclean Services, and he put it on the counter in front of Mr Whelan.  He then had a tank that appeared to be leaking and he went to get the air tester and checked the tank.

The complainant said that he didn’t know anything about an investigation into what occurred on March 4th.  He was suspended on March 5th and told to go home.

At the disciplinary meeting on March 10th 2021, the complainant said that the written warning he received in February 2020 was brought up.  He said that Mr Ryan and Mr Gaughran said that it didn’t matter that the warning was issued more than a year ago.  He said that the meeting lasted about 15 minutes and that no notes were taken.  He was dismissed by letter on the same day, without notice.

The complainant said that he got a job a few days later.  He said that it took him a long time to get over being dismissed from a company he had worked in for 15 years and that his confidence was dashed.

Cross-examining of the Complainant

In cross-examining, the complainant agreed with Mr Stafford that the company has two dangerous goods safety advisors.  He knows the identity of the safety officer.  The complainant disputed that all the disciplinary warnings he got were related to health and safety matters.  He said that he got a written warning for falsifying information about a tank that was under-heated.

The complainant said that he remembers the training on safe systems of work in confined spaces which he attended on June 21st 2019.  He said that all the safety personnel in the company did not attend this course.  The man on top of the tank monitoring him when he was in the tank didn’t attend the course.

Mr Stafford referred to other courses that the complainant attended and he said that he remembered the training.  He accepted that he was trained in how to work in confined spaces and he agreed that the company put a considerable investment into training.

Mr Stafford asked the complainant why he didn’t appeal against his dismissal.  He replied, “why waste your breath when you know what’s against you?”

The complainant said that, two weeks before the incident, he reported to Mr Ryan that one of the office staff was ignorant to him and nothing was done. 

Mr Stafford asked the complainant if he knew that if he hadn’t got an air tester, he wasn’t to enter a tank.  He said that he knows that that’s the rule.  He accepts Mr Whelan’s report that he went into a tank without a meter.  He said that he took steps to make sure the tank was safe.  Mr Stafford said that there is no procedure to override the rule.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) provides that:

“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.”

Section 6(4)(b) of the Act provides that,

“…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 …the conduct of the employee.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case.  It is the respondent’s case that the complainant was dismissed for “blatant disregard of health and safety” when he entered a tank to carry out a repair without using a meter to assess if the air in the tank was safe.

Was it Reasonable to Dismiss the Complainant?

Considering the reasonableness or otherwise of the respondent’s decision to dismiss the complainant, I must have regard to the decision of the Circuit Court in the case of Allied Irish Bank plc v Purcell[2].  Here, Mr Justice Linnane referred to what is now conventionally known as “the British Leyland test” and the band of reasonable responses available to an employer.  The British Leyland test requires a decision-maker to ask if it was reasonably open to the employer to make the decision it made.  Regarding how the test should be viewed, Mr Justice Linnane held that,

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

In the 1982 decision of the former Employment Appeals Tribunal in Bunyan v United Dominions Trust (Ireland) Limited[3], the chairman endorsed the view that,

“…the fairness or unfairness of 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.  The Tribunal therefore, does not decide the question whether or not, on the evidence before it, the employee should be dismissed.  The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

Taking my authority from the decision in Allied Irish Bank v Purcell, it is not for me, as the adjudicator, to consider if the complainant should have been dismissed, but to ask if it was reasonably open to the respondent to make the decision it made.  I am mindful also of the view of the chairman of the EAT, Mr Donal Hamilton in the Bunyan decision, and my role to test the decision of the respondent against what a reasonable employer would have done. 

There was no dispute about the fact that the complainant did not comply with an important safety regulation when he got into a tank without using a meter to test that the air in the tank was safe.  He said that the nearest meter was a mile away; although the evidence of the respondent’s witnesses is that Tankclean Services was about 500 metres from the depot where the complainant was working.  Regardless of the distance, it seems to me that the requirement to use the meter was more critical than the time it would take to collect it.  Not using a meter in the tank could have resulted in serious illness or death and, for this reason, I find that his failure to do so was gross misconduct.

I find that the final written warning issued to the complainant in February 2020 is irrelevant, and that the dismissal was not the end point in a sequential process, but a standalone decision.  The conduct engaged in merited dismissal in its own right.

In his evidence, the complainant agreed that he had been trained in the procedures to be followed when working in a tank, and, while he claimed that he was under pressure to get a tank out, there is no evidence that he challenged anyone’s instructions to work quickly without adhering to the safety precautions and I do not accept that he was under such pressure that he felt forced not to follow the procedures.

Having regard to the specific circumstances of this case and, taking my authority from the Bunyan decision, I find that another reasonable employer in the chemical transport business would have reached the same conclusion.  For the reasons set out above, I find that it was reasonable for the respondent to dismiss the complainant.

Was the Process Fair?

From a procedural perspective, the facts at issue did not require an in-depth or long-drawn-out investigation.  However, no investigation of any substance took place, apart from a report to Mr Ryan and Mr Gaughran by Mr Whelan concerning his discovery on March 4th that the complainant worked on a tank without a gas meter.  I believe the complainant’s evidence that the meeting that ended with his dismissal took about 15 minutes, because there was very little to discuss.  The fact that Mr Gaughran said that he conducted interviews with the complainant and others doesn’t stand up, because the complainant himself said that he wasn’t interviewed and there are no notes of any other interviews.  Mr Gaughran’s attendance at the disciplinary meeting compromises the independence of the outcome of that meeting, albeit that I have found that the decision to dismiss the complainant was a reasonable one.

I note the outcome of the decision of the former EAT in the case of Dunne v Harrington which was referred to by Mr O’Donnell.  The fact that the respondent did not provide the complainant with a copy of Mr Whelan’s report, limited as it was in its usefulness, has resulted in a serious flaw in the disciplinary process.

It is a matter of concern that a company that puts a proper emphasis on compliance with health and safety procedures seems to have little concern for the procedures to be followed when dealing with matters of serious breaches of discipline.

For his part, the complainant also displayed scant regard for procedures, when he decided that he would be wasting his time if he appealed the decision to dismiss him.  At an appeal hearing, he could have made a case for his reinstatement by highlighting any mitigating factors and raising his concerns about the procedures that ended with his dismissal, which were clearly faulty.  An appeal may have avoided the need for this hearing.  The complainant’s failure to exhaust his employer’s disciplinary procedure was an error and demonstrate to me that he was not completely convinced that his dismissal was unfair.

Conclusion

I have considered all the facts and the evidence presented to me on both days of the hearing.  I have reached the conclusion that the conduct of the complainant was such that it was properly considered to be gross misconduct and it was reasonable for the respondent to dismiss him.  I find however, that the procedures followed by the respondent were flawed, to the degree that the dismissal was unfair.

I have decided that this complaint is well founded.  Of the redress options available, the complainant selected compensation.  The parameters within which I am required to consider the amount of compensation to be awarded are set out at section 7 of the Unfair Dismissals Act under the heading, “redress for unfair dismissal.”  Sub-section 1 provides that any award of compensation may not exceed 104 weeks’ remuneration.

The complainant was dismissed on Wednesday, March 10th 2021 and he started a new job the following Monday.  His starting wages in his new job were €586 per week, and in June 2022, his wages were increased to €600 per week.  I estimate therefore, that, in the two years following his dismissal, the gross reduction in his earnings was approximately €2,000.

Having concluded that the dismissal of the complainant was unfair, I find that he contributed significantly to the respondent’s decision to dismiss him.  For this reason, I direct the respondent to pay the complainant compensation of €1,000, equivalent to 50% of his losses in the two years following his dismissal.  As this compensation is in the form of loss of earnings, it is subject to the normal statutory deductions.

Dismissal, breach of health and safety procedures, disciplinary procedures