Complainant

Respondent

Parties

Derek Upton

McDermott Laboratories Ltd T/A Viatris

Representatives

Hugh O’Flaherty BL instructed by Katie Doherty, Sherwin O'Riordan Solicitors

Alison Fynes BL instructed by Niamh Crotty, Lewis Silkin Solicitors

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-00044815-001

28/06/2021

The complainant worked for the respondent between the 14th May 2008 and his dismissal on the 28th June 2021. He was paid €43,806 per year. He worked as a manufacturing operative in the respondent pharmaceutical facility. The complainant asserts that his dismissal on the 28th June 2021 was unfair; the respondent denies the claim. The respondent facility closed over the course of 2022 as notified to the employees in the 2021 collective redundancy process.

CCTV footage made a significant contribution to the respondent’s conclusion that the complainant was not using his left arm in the usual way between 6.34am and 7.55am on the 11th May 2021. The footage was of corridors and milling rooms in the respondent facility, depicting the complainant and colleagues in full cleanroom clothing. I have addressed below the probative value of this CCTV footage. Before setting out the clips played during the adjudication hearing, it is worth noting that the downloaded footage froze where no one is moving through the corridor or room. It froze where a person was doing a task at one location until that person or someone else started to move through the area.

The following is my note of the video footage, in the sequence played at the hearing and as numbered by the respondent, as well as some of the comments of witnesses.

Video 1 stepover

Timed at 6.34am, this depicts the complainant in the step over room, dressed in blue overalls and wearing a mask. He sits with his back to the camera. He places a hairnet on his head, initially using one hand and then using both hands. The footage freezes and the Supervisor, Mr Rooney enters the shot. In evidence, Ms Cassidy said that she would expect an employee to use two hands in placing a hairnet. In evidence, Mr Farrell said that it was unusual for the complainant to have stepped over without wearing coverings at the outset of the day. It was striking and unusual to use one hand to fix the hairnet and he had not mentioned holding a badge in his left hand. The failure to wash his hands was significant as they believed that he had come to work with an injury.

Video 2 corridor

This depicts the complainant walking through a corridor area and there is intermittent freezing in the footage. The complainant completes two tasks with one hand, piling a loader and moving a trolley. He is seen overtaping the box with two hands. He is seen to twice walk through the corridor and has a relaxed gait. The complainant interacts with the colleague being trained in. It is difficult to judge demeanour as they are wearing blue bodysuits, but their conversation appears friendly and engaged. The colleague pulls his loader with one hand and a supervisor is also seen pulling a loader with one hand. In evidence, Ms Cassidy said that it was unusual for an employee to use one hand and not two hands in moving the palette. She commented that the complainant’s left hand was by his side. In evidence, Mr Farrell said that it was unusual for the complainant to have pushed the palette truck and opened a door with only his right hand. He said that the complainant’s hand looked swollen at 7.06.16am.

Video 3 production lift corridor

The complainant is seen pulling an empty box. He brings in a palette truck with one hand and moves the box onto the palette. He then pumps up the loader with one arm.

Video 4 dispensing area

The footage froze at the start of this clip. The complainant is seen to walk through the room freely. He is seen pulling a box and opening a door by pushing a button. He returns by pulling the loader with one hand and then pushing it with one hand. The box appeared to be light. The complainant then walks back in a relaxed way. This is the action in video 3 caught by a different camera. In evidence, Ms Cassidy said that it was unusual for an employee to move a box with one hand and two hands would normally be used. In evidence, Mr Farrell said that it was not usual for the complainant to manoeuvre the palette truck with one hand.

Video Milling Room and footage of the incident

The Supervisor is seen moving the palette truck around. The cleaner is seen to pick up cones. The complainant is seen pulling in the palette truck and is speaking with a colleague. The complainant and three others are in the area, including Mr Vincent. The complainant is seen to move the drums, but the footage is not clear. There is freezing and the camera is far from the area. The complainant is then seen pulling a loader. In evidence, Ms Cassidy said that she was able to see a close-up of the incident, which was not possible using the downloaded footage at the hearing. She could see the complainant move the drums with his right hand and she expected an employee to use both hands to lift a drum. She said that nothing suggested that there was an impact or fall that would cause an injury to such an extent. She did not speak with any of the colleagues then in the area as they had not been doing the same activity.

Video 7 ‘New scales’

At 7.51am, the complainant is seen walking through the corridor normally. He lifts and nudges a tub onto a palette. In evidence, Mr Farrell said that the complainant had only used his right hand to put shrink wrap in a bin.

Video 5 10 May

This footage is of the day before the incident. The respondent contrasted the manner in which the complainant used both hands in this footage to his use of his right hand on the 11th May. The complainant is seen taking gloves out of a box fixed to the entrance of a milling room. He leaves and returns with a small stepladder. He opens the double doors with both hands. He then completes physical tasks of removing a drum and moving a new one in. He fills the drum. In evidence, Mr Farrell said that the complainant used his left hand to put on gloves and opens doors with two hands.

Vision 6 10 May

This is footage of the same room. Mr Vincent is standing outside the room and asking the complainant a question. The supervisor appears holding a laptop. The complainant is careful to use a visor and gloves in this room. The complainant spends considerable time talking to Mr Vincent. I observed that the complainant is generally jovial and relaxed in his demeanour; I contrast his demeanour in this footage as his demeanour is of someone imparting important, safety information about a dangerous process. The complainant is then careful and measured in loading the drum. I observed the complainant as an employee who is serious about his health and safety obligations, in particular around dangerous processes and with new colleagues. In evidence, Mr Farrell said that while the complainant was not depicted emptying bags on the 11th May, it was significant that he was able to use both hands for this task on the 10th May.

The respondent outlined that the complainant had reported an injury to his wrist on the 11th May 2021. The medical letter referred to the mechanism of injury being ‘unusual’ and this raised a suspicion. The CCTV was viewed, and this showed that the complainant was not using his left arm prior to reporting the injury on the 11th May. Other CCTV showed that the complainant had used his left arm on the 10th May. The conclusion was that the complainant had attended work on the 11th May with a pre-existing injury and attempted to attribute this to the company.

Evidence of Lisa Cassidy

On swearing the oath, Ms Cassidy outlined that she was the Environmental Health and Safety Director. A team and the nurse reported to her. The investigation of the incident of the 11th May was inconclusive. Two colleagues had attended the site of the incident at 10.30am. She spoke with the colleagues and to the nurse, who had treated the complainant. The nurse later confirmed that the complainant had obtained a certificate referring to ‘query fracture’ and that he would be on sick leave. The supervisor then sent her the incident report. She spoke briefly with Dr O’Brien.

Ms Cassidy viewed the footage of the 10th May as they could not ascertain how the incident of the 11th May had occurred. She wanted to see whether he could have been injured in the last hour of work on the day before. On the 10th May, the complainant was moving easily and used both hands to open doors, unlike using one hand the following day. Ms Cassidy drafted the Internal Memo of the 24th May 2021. She was unable to establish a cause for the incident and had serious concerns, in particular in light of the footage of the previous day. The complainant had been fluid on the 10th May but was not using his arm in the same way on the 11th May.

Ms Cassidy outlined that the note was amended by hand to correct that there were three drums and not four, as originally stated. She said that the drums were easy to move, and the complainant had used one hand to move them. She had recorded the weight of the drum as being 25kg and the complainant had later said that they were 42.7kg each. The complainant had been able to move the drum fluidly with his right hand.

Ms Cassidy said that she was pretty sure that the complainant had used his right hand to lift the drum. The supervisor had been in the control room when she viewed the footage. She could not see how lifting the drum could cause the injury and a scaphoid injury tended to occur through blunt force. She said that the complainant’s injury was consistent with a fall.

In cross-examination, Ms Cassidy said that on the 11th May the priority was providing medical assistance to the complainant. The reports of the two colleagues who initially attended the scene were not available. They had not taken witness statements as they believed that no one had witnessed the incident. The complainant had not been accused of not crying out in pain. It was put to her that the disciplinary investigation had later emphasised the fact that the complainant had not cried out in pain, so other people should have been interviewed. She replied that their priority was to investigate the source of the incident. She did not contact the complainant as he was on sick leave, and this was standard practice. It was put to Ms Cassidy that while the complainant was not able to work, he was not bedridden. She accepted that the photograph of a drum appended to the report was not the actual drum as this had been processed. She accepted that the initial report had stated that the drums had been removed and this was not accurate. She said that what mattered was the way the drum was handled and not its weight. She accepted that the supervisor’s report had referred to the complainant moving the drum and not to pulling or lifting it. She said that the supervisor may have referred to pulling or lifting in his conversation with the colleague who first attended the scene, but this colleague’s report was not available. It was put to Ms Cassidy that the report wrongly stated that the incident occurred at 8.45am; she replied that this would make little difference to the outcome.

It was put to Ms Cassidy that the respondent had commenced the disciplinary investigation with the complainant during his sick leave, but she was not able to contact him during this time. She replied that she would never contact an employee on sick leave and the disciplinary investigation was a matter for HR. She had requested to view the CCTV as something had happened on the 11th May and they could not identify the cause. It was her recommendation to view the footage of the 10th May. She viewed the footage on the 20th May.

In respect of the Memo of the 24th May 2021, Ms Cassidy said that she observed the complainant lifting the drums with his right hand. She accepted that what she observed was not inconsistent with the complainant lifting with his right and pushing with his left. She had said in the Memo that there were four drums as this is what she had understood from the supervisor. She said that it would be generally obvious on CCTV if someone hurt themselves as they would cry out. Ms Cassidy accepted that there were occasions in the footage of the 11th May that the complainant had used both hands. She accepted that taping the box would require two hands and that the footage had frozen. She did not see the complainant using both hands freely.

It was put to Ms Cassidy that this had been a conspiracy theory on her part; she strongly rejected this, saying that this suggestion was unfair and not correct. She had spoken with the nurse, who was concerned about the complainant’s wrist and advised that he should remove his wedding ring. It was put to Ms Cassidy that this was consistent with the injury occurring that day. Ms Cassidy was asked whether she had spoken to the nurse about this element of her note; she replied that she had not. She said that they had assumed that the injury had occurred on the 11th May but looked at footage from the 10th May when they could not find a direct cause of injury. It was put to Ms Cassidy that the 11th June comments of Dr O’Brien stated that swelling could be almost immediate.

Ms Cassidy outlined that following her Memo, she spoke with Mr Collins. She had not found an ‘absolute cause’ for the injury and was concerned that the complainant did not have the same range of movement on the 11th as he had on the 10th. She felt that something had occurred before the 11th May. She was aware of the disciplinary process starting shortly after her Memo. It was put to Ms Cassidy that the disciplinary invite letter referred to the complainant’s ‘version of events’ when there was no such version; she replied that she could not comment on the letter.

Ms Cassidy could not comment on Dr O’Brien’s reference to the drum being 25kg in weight in the report of the 3rd June 2021. She had one conversation with Dr O’Brien after the assessment where Ms Cassidy said they could not ascertain the cause of the injury. She did not relay what she thought had happened. They discussed the complainant’s recovery and return to work.

Ms Cassidy accepted that the CCTV footage froze when viewed on a laptop but had not frozen when she watched the footage in the control room. She had not seen the footage of the complainant taping the box where it had not frozen. She could not recall any footage being frozen when she watched it on the 20th May in the control room. She took limited notes on the 20th May and viewed footage for 30 minutes.

In re-examination, Ms Cassidy said that ‘25kg’ was entered to the incident report arising from the initial investigation by the two named colleagues. The report could be edited until it is finalised. She spoke with Dr O’Brien even after the disciplinary investigation had commenced because the health and safety investigation remained open.

Evidence of Dr Sheelagh O’Brien

On oath, Dr O’Brien outlined that she assessed the complainant on the 3rd June. She had seen that the note referred to the drum being 25kg, while the nurse’s report stated it was 50kg. It was clear that the complainant had a fracture and had been immobilised properly. By the 3rd June, he was making a good recovery. She had stated that the ‘mechanism of injury is unusual’ as it was an innocuous rotation injury. Most common injuries of this sort were caused by blunt force. She had referenced ‘unusual’ in the context of suggesting corrective action. There was a push-pull movement in this case. Pain was subjective and swelling can happen instantly. The complainant later had bruising, and this was consistent. In the 11th June email, she had inserted a saver that she was not questioning the employee’s version of events. She accepted that she had stated that a healed fracture is as strong or stronger than the original bone.

In cross-examination, Dr O’Brien said that the reference to 25kg was probably a typo. She had not spoken to anyone about the weight of the drum. The swelling and having to take the wedding ring off were consistent with the injury occurring that day. Dr O’Brien accepted that the complainant pushing the drum would involve force and not rotation. Dr O’Brien accepted that her reference to ‘unusual’ did not mean impossible. Her comments were in the light of any necessary corrective action and accidents could happen.

Evidence of Darren Collins

On affirmation, Mr Collins said that he was the manufacturing director and was notified of the incident of the 11th May. He received the memo of the 24th May and was brought in once the health and safety investigation was inconclusive. He viewed the CCTV of the 10th and 11th May over 90 minutes and concluded that this was out of character and required further explanation. The complainant had breached Good Manufacturing Practice at the stepover on the 11th May in not washing his hands and going over to one part of the room. The placing of the hairnet was unusual as was pushing a palette truck with one hand. He was holding his left arm by his side, which was odd. The inconsistencies in the CCTV led to the disciplinary invitation letter of the 27th May.  The CCTV was shown at the disciplinary investigation meeting and the complainant, and his representative had the opportunity of viewing it in the control room.

Mr Collins referred to the stepover footage, i.e. not washing his hands, the hairnet and appearing to hold his arm in a sling. There were stark differences in the complainant’s use of his hands between the 10th and 11th May. He used his left hand in every movement on the 10th May and only on a few occasions on the 11th May. The complainant had not washed his hands on the 11th May because he did not want to manipulate his hands. The complainant had used his left hand when taping the box out of ‘necessity’ and had difficulty in doing so. Mr Collins accepted that the complainant had driven to work on the morning of the 11th May.

After the investigation meeting, Mr Collins concluded that there were anomalies and the change in the complainant’s demeanour did not make sense. They were not happy with the responses, and they considered Dr O’Brien’s report. The investigation outcome letter of the 9th June 2021 referred to the complainant’s use of his left hand on the 11th May as well as Dr O’Brien’s ‘unusual’ comment.

In cross-examination, Mr Collins said that he had only spoken with Ms Cassidy once she had sent the Memo. She explained her concerns and he adopted a neutral stance in carrying out the investigation. The reference in the letter of the 27th May to the complainant’s ‘version of events’ was the records of the 11th May. They did not look at the nurse’s notes. They suspected that something had occurred before he came on site. Mr Collins was asked why he had not considered the evidence that supported the complainant’s account, for example the nurse’s notes. He replied that the CCTV footage was stark evidence that the complainant was not using his left arm in a normal manner.

Mr Collins said that they had not interviewed others present on site as it was unfair to interview colleagues and the CCTV footage showed a lot. He said that taking everything together showed a discrepancy and the complainant could have taken painkillers to disguise the pain of driving to work. Mr Collins accepted that an employee is entitled to 40 days of paid sick leave irrespective of the cause of the injury. The complainant would be entitled to shift allowance and health-related costs had the injury occurred at work. It was put to Mr Collins that the complainant should have been given the benefit of the doubt when the footage froze, for example taping the box. He replied that the other footage indicated a tendency not to use the left and the three or four occasions he used the left hand were limited use. Mr Collins said that he could not say that the complainant had blamed the respondent for the injury. He could not say what the complainant’s motivation was.

Evidence of David Farrell

On affirmation, Mr Farrell said he was Head of HR. He was aware of the incident of the 11th May and received the health and safety documentation and the disciplinary investigation documents. The disciplinary hearing took place over four days and a single set of minutes was circulated with the disciplinary outcome. At the outset of the hearing, he had amended the first aid report to reflect that the complainant had said he was lifting the drums with his right and pushing them with his left. He did not speak with the colleague who administered first aid as this was a month after the incident. The complainant clearly had an injury so there was no need to speak with this colleague.

In respect of the reference to the disciplinary policy to interviewing people, Mr Farrell said that this was not what a disciplinary policy should be. It was a template and he had used his experience. He did not see the need to interview everyone. He had not spoken with the nurse as there was clearly an injury. He raised the issue of pain as he expected the complainant to immediately have pain on breaking a bone. The complainant had said in the investigation that he heard a crack after the first drum but was now saying the second drum. This was significant as the complainant was changing his story following Dr O’Brien’s comment regarding how force was required for the injury.

In respect of the incident, Mr Farrell demonstrated what he had seen in the footage during the disciplinary meeting. He said that the complainant had not looked at his wrist or stopped. He did not say to anyone that he has hurt his hand. This was on top of the inconsistency over the first and second drum.

In respect of the letter of dismissal of the 28th June 2021, Mr Farrell said there were four examples where the complainant had not used his left arm on the 11th May 2021. The complainant’s left hand was discoloured. The letter referred to pinning it on the company as the complainant had alleged that he incurred the injury while performing his duties. The logical conclusion was that he was claiming that this was an accident at work and therefore an attempt to blame the company for not providing a safe place of work. This blaming the company caused the breakdown of trust. The decision to dismiss was not taken likely and followed much deliberation. They considered alternatives but none were tenable. Mr Farrell said that the closure of the site was announced in December 2020 and was to be completed in 2021.

In cross-examination, Mr Farrell accepted that any doubt should go in the complainant’s favour. He had no regrets about the conduct of the disciplinary hearing, and they took their time on each day of meeting. He did not see the relevance of interviewing the nurse as there was no question the complainant had suffered an injury. It was put to Mr Farrell that the nurse’s note stated that there was immediate swelling such that the complainant had to remove his wedding ring; he replied that no one was doubting that there was swelling and that they believed there was swelling before. Mr Farrell was asked why not ask the nurse for when she thought the injury happened; he replied that they had contacted Dr O’Brien. It was put to Mr Farrell that Dr O’Brien had not seen the complainant on the 11th May, unlike the nurse.

Mr Farrell said that the only person in the vicinity of the incident was the supervisor and he had provided a statement. The supervisor had not witnessed the incident. He had not interviewed Mr Vincent. It was put to Mr Farrell that the complainant had had a good personal injury claim in 2012 but did not sue. Mr Farrell was asked about the tone of the interview and that he had never accepted any explanation provided by the complainant. He replied that they had challenged the complainant’s evidence but had not badgered or interrogated him. They put tough questions to him for example on the first v second drum and not feeling immediate pain. It was Mr Farrell’s experience that pain would be immediate.

It was put to Mr Farrell that while Dr O’Brien had described the mechanism of injury as ‘unusual’, he had concluded that it was impossible. He replied that he saw the complainant not using his left hand and Dr O’Brien had not viewed the footage. The complainant changed his evidence and used his foot to push the third drum. It was put to Mr Farrell that Dr O’Brien was clear that she did not disbelieve the complainant; he replied that they found that the complainant’s evidence did not correlate with the footage. He did not accept that he had been looking for ‘Gotcha’ moments to undermine the complainant’s evidence. He did not accept that he was only willing to consider evidence that supported one narrative and not evidence supporting the complainant. He had acknowledged that the complainant had used his left hand on the 11th May and that there was also inconclusive evidence.

Mr Farrell accepted that the complainant and Mr Flood had said that the taping of the box required two hands, and this was ‘uncontroverted’. He accepted that the footage had frozen at this point. He accepted that the footage also froze when the first two drums were lifted onto the palette. Mr Farrell did not accept that it was hard to see the complainant’s actions on the footage, which did not support the complainant’s account of lifting with his right and pushing with his left. He said that Dr O’Brien had said that there would be a traumatic event, in particular where there was a previous, healed injury.

It was put to Mr Farrell that Dr O’Brien had said that the injury could have occurred in the way described by the complainant. It was put to Mr Farrell that the nurse’s evidence was of immediate swelling. It was put to Mr Farrell that the evidence was that two hands were required to lift the drum and to tape the box. It was put to Mr Farrell that the footage showed the complainant moving freely on the 11th May, including his hands. Mr Farrell replied that on balance and for the majority of time, the complainant’s left hand was not moving freely. He said that the footage was reliable, and the complainant could be identified. The nurse was not interviewed as there was no dispute over the fracture and others were not engaged.

It was put to Mr Farrell that the complainant had never sought to blame the company and had not blamed the company in 2012; Mr Farrell replied that there were no current personal injury proceedings, and he was not aware of the 2012 incident. They concluded that he had not fractured his wrist at work so this was blaming the respondent. It was put to Mr Farrell that the complainant’s exemplary record should have had a bearing; Mr Farrell that this was not a progressive disciplinary issue, and it was a serious allegation against the company.

Evidence of Dr Shane Conway

On affirmation, Dr Conway said he was the Senior Director of Operations. At the disciplinary hearing, he had asked about moving the drums being routine, which the complainant confirmed. Dr Conway said it was unusual for the complainant not to wash his hands at the stepover area. It takes two hands to fix the hairnet and the complainant had not mentioned holding his badge with his left hand. He said that the complainant had opened a door with his right hand to avoid using the left. The footage showed the complainant moving the drums in one movement and using his foot on the third. It was not clear that he had lifted with his right and pushed with his left. It was awkward for the complainant to only use his right hand to remove cling film, and this pointed to the left being injured. He referred to the stark contrasts between the 10th and 11th May, including loading the drum and using a palette truck on the 10th May.

In the dismissal letter, Dr Conway said that they concluded that they did not believe that the incident had occurred as claimed by the complainant. The complainant’s account was not in line with the video evidence and Dr O’Brien’s evidence. This would be the first case of someone injuring themselves by pushing a drum rather than something falling. The complainant had not been honest, and trust was very important in the business.

In cross-examination, Dr Conway said that the complainant was fired because he was dishonest and for a breach of trust. It was a huge concern that he was not truthful. He did not see the need to get evidence from the nurse. He accepted that the complainant had given evidence of using two hands to tape the box. He could not recall when he first saw the disciplinary minutes or whether he made amendments to the letter of dismissal. The complainant had sought to blame the company through his actions. They considered alternatives to dismissal. The complainant could have been medicated on driving to work. It was put to Dr Conway that the taping evidence was not considered; Dr Conway replied that the balance of the evidence was the basis of the dismissal, including his behaviour on May 10th and 11th. It was put to Dr Conway that Ms Cassidy had developed a theory and there was then a determination to prove that theory and disregard evidence in the complainant’s favour.

Evidence of Pat Garrahy

On affirmation, Mr Garrahy said he was appointed to hear the appeal. He agreed to look at footage from other dates. The footage of the 30th April depicted the complainant flinging a drum with his right hand and then using two hands to push the palette truck. The footage of the 6th May depicted the complainant walking through the corridor and adjusting his headwear and pushing a palette truck with two hands. There was similar footage of the 7th May. He commented that it was unusual to use one hand to push a palette truck. He outlined that the appeal conclusion took account of all points, and they reviewed the evidence. The additional material confirmed the disciplinary outcome.

In cross-examination, Mr Garrahy said that the follow-up information from Dr O’Brien contradicted the complainant’s view that the injury was more likely because of a healed fracture. It was put to Mr Garrahy that Dr O’Brien had said that the injury could have occurred as stated by the complainant. Mr Garrahy accepted that the word ‘blame’ was a conclusion drawn and not a word used. Mr Garrahy said that they had considered all the evidence and the CCTV was strong.

Respondent closing

The respondent submitted that there were substantial grounds justifying the dismissal on grounds of the complainant’s conduct. This dismissal fell within the reasonable band of responses. The disciplinary investigation and disciplinary hearing were thorough and detailed. There were stark differences in the complainant’s demeanour. Dr O’Brien had found that the mechanism of injury was unusual. There were further inconsistencies in the complainant’s account regarding how the injury happened and when he felt pain. Reinstatement was inappropriate as there was a complete breakdown of trust and confidence, and this form of redress was only suitable in exceptional circumstances. Relying on Keane v Cummer Coaches (ADJ-00032605), it submitted that the respondent had been entirely reasonable to dismiss the complainant, and this fell within the reasonable band of responses.

Evidence of Derek Upton

The complainant gave evidence under affirmation. He outlined that he was at fault for the injury he incurred on the 11th May 2021 and had injured his wrist on pushing a drum. He had never tried to blame the respondent. He said that he had been badgered at the disciplinary meeting, with questions being repeatedly asked of him. He gave evidence of his securing new employment after his dismissal but that he did not receive the enhanced redundancy terms in 2022 he would have received had he been employed when the respondent facility closed.

In cross-examination, it was put to the complainant that he had not challenged the accuracy of the disciplinary minutes as part of his appeal. It was put to the complainant that there were inconsistencies in how the injury was described, with this being described as ‘crack’, ‘click’, ‘bang’ or ‘tweak’. It was put to the complainant that he had been inconsistent in describing the cause of the injury as being caused by ‘lifting’ but then by ‘lifting and pushing’. He had also omitted the reference to a ‘kick’ to a drum. It was put to the complainant that he had been inconsistent in whether the first or the second drum had caused the injury; he replied that it was always the second drum. It was put to the complainant that he had been inconsistent in describing his pain, changing his account as to when he felt pain. He replied that this was a couple of minutes after the incident. It was put to the complainant that on his arrival to work, he had not washed his hands and had put on a hairnet in an unusual way because his left hand was already in pain.  The complainant did not accept this and said he washed his hands at work 8 or 9 times a day.

Evidence of Kenneth Flood

On affirmation, Kenneth Flood outlined that he attended the disciplinary and appeal meetings with the complainant. He described the respondent as having a narrative at the meetings and that the complainant’s points were not listened to. He said that the closing the box with tape required the use of two hands. He described the manner in which drums were rolled into position and that this was second nature in manufacturing. In cross-examination, it was put to Mr Flood that he had not raised at the meetings that the minutes were incomplete or that different CCTV angles could be viewed. 

Complainant closing

In closing, the complainant outlined that the respondent had been unreasonable in claiming that he had attended work with a broken wrist to contrive that he had incurred the injury at work. The complainant had nothing to gain from doing such a thing. He was entitled to sick pay, irrespective of the source of the injury. There was no evidence that the complainant sought to ‘blame’ the respondent and there are no personal injury proceedings. It was submitted that Ms Cassidy had concluded that the complainant had broken his wrist prior to coming to work and this influenced how the respondent dealt with this entire matter. The respondent had discounted evidence that supported the complainant’s explanations. The complainant asked how he could have driven to work with a broken wrist; they referred to painkillers. Yet, the pain is said to have prevented the complainant from putting on a hairnet with two hands and from washing his hands. The respondent had discounted the two tasks the complainant did that morning that required two hands: taping the box and moving the drums.

The complainant outlined that he had not been given a fair hearing and the process had been pre-determined. The respondent had not called witnesses, including the people the complainant had met on the morning of the 11th May. It relied entirely on CCTV footage, even though evidence that could clear the complainant could not be seen as the footage froze.

In respect of redress, the complainant outlined that compensation would fall far short. There was no evidence of a breakdown of trust with his colleagues. Reinstatement was the only appropriate remedy.

This is a complaint pursuant to the Unfair Dismissals Act. The complainant was dismissed on the 28th June 2021. The complainant availed of an appeal, but this appeal was heard and concluded with the complainant being a dismissed employee. The contract of employment does not stay the dismissal pending the appeal. The complainant was not retained as an employee pending the appeal and was dismissed by letter of the 28th June 2021. The date of dismissal is, therefore, the 28th June 2021.

It was not disputed that the complainant fractured his left wrist. What is in dispute is whether this occurred at work. It occurred on or before the 11th May 2021; but the timing is very much in dispute. The fracture was not a serious fracture. The occupational health assessment of the 3rd June 2021 held that the complainant was making good progress, as did the orthopaedic surgeon’s report of the 10th June. He was deemed fit to return to duties on the 17th June 2021. The complainant did not return to work, rather he was suspended and then dismissed from his employment.

Band of reasonable responses

I agree with the counsel for the respondent, Ms Fynes BL that an employer’s decision to dismiss an employee on grounds of conduct is one to be assessed within the ‘band of reasonable responses’ open to an employer. The well-established principle is that once the fact of misconduct has been established on a balance of probabilities, the employer need only show that the decision to dismiss fell within the band of reasonable responses. What is in dispute in this case is whether there was any misconduct by the complainant. The respondent is firmly of the view that there was misconduct. Equally, the complainant is firmly of the view that there was no misconduct on his part.

Grounds of dismissal

The grounds of the dismissal were that the complainant claimed to have broken his wrist in work at 7.55am on the 11th May 2021. The respondent concluded that the injury could not have occurred as claimed by the complainant and this was, therefore, an attempt ‘to blame the Company for causing you a very serious injury.’ The respondent submitted that the complainant had attended work on the 11th May 2021, already having broken his wrist and then contrived that an action in moving drums at 7.55am was the cause.

The complainant outlined that he injured his wrist in the manner he lifted and moved drums. He said that he never blamed the employer and at the hearing, was clear that he was at fault because of the way he moved the drums. He denied arriving at work with a broken wrist or misleading the respondent. He had nothing to gain by saying that he had incurred the injury in the workplace.

Initial health and safety investigation

This matter commences with the health and safety investigation, embarked on the 11th May. The two colleagues who first attended the scene did not give evidence, nor were their direct notes available. The additional information note in the incident report stated: ‘The investigation is inconclusive and a further review was undertaken by L Cassidy (EHS Director) of the incident. Discussed findings with D Collins and D Rodak and await further input from HR’. I note that the completed incident report recorded that the incident was ‘excluded from rates and counts’ for ‘reason: non-work related’.

The ‘findings’ referred to above were set out in the memo of the 24th May 2021. Ms Cassidy stated that the moving of four drums (circa 25kg each) was not consistent with a fractured wrist. She stated that CCTV footage showed the complainant moving the drums with ease and that he left the room without obvious pain or discomfort. Ms Cassidy stated that she was ‘perplexed’ as there was no direct cause for the injury from the task. She reviewed the footage from the 10th May and concluded that the complainant was then moving freely. Ms Cassidy outlined that she viewed footage prior to the incident of the 11th May, i.e. not washing hands, the hairnet, opening doors and general mobility. Ms Cassidy concluded that these observations were of ‘grave concern’ to her. On the 3rd June 2021, Ms Cassidy spoke with Dr O’Brien regarding the possible cause of the injury and did not share her ‘grave concerns’ with Dr O’Brien.

While Ms Cassidy had made ‘findings’ that were of ‘grave concern’, it is important to note that this was the end of the health and safety investigation. There followed the disciplinary process. The fundamental problem is that the entire disciplinary process mirrored the exact approach adopted by Ms Cassidy in attributing this injury as something non-work related.

Quality and range of evidence available to the disciplinary process

As noted, Ms Cassidy had ‘grave concerns’ arising from the CCTV. She spoke with Dr O’Brien on the 3rd June and was unable to confirm the cause of the injury. The CCTV and Dr O’Brien were the two pillars on which the disciplinary process ultimately held that there were substantial grounds to justify the dismissal.

I make the following findings in respect of the quality and range of evidence either available to the respondent, or availed of by the respondent, over the whole of the disciplinary process.

Quality & range of evidence - cleanroom

First, it is important to note that this is a cleanroom environment subject to Good Manufacturing Practice in the pharmaceutical industry. The complainant and his colleagues wore baggy, blue cleanroom body suits, masks, visors and hairnets. On viewing the CCTV, it was difficult to make definitive findings on comportment and demeanour because of this attire.

Quality & range of evidence - CCTV

Second, we watched CCTV footage over several hours in hearing this case. The downloaded footage was not of great quality. It frequently froze when no-one was walking or moving through the room. The respondent suggested that the complainant’s hand looked swollen at 7.06.16am on the 11th May. I do not agree at all that the footage showed anything other than the complainant’s normal hand. There was no basis for this adverse finding made against the complainant.

The footage froze and was of limited quality, but some footage depicted events taking place at a considerable distance. The crucial event, the disputed incident of 7.55am, was particularly hard to make out because of the freezing and the camera being in another room.

Given these issues with the CCTV footage of the 11th May, the respondent was required to bolster any adverse findings with other sources of evidence.

Quality & range of evidence – Dr O’Brien

Third, the respondent relied on Dr O’Brien’s report of the 3rd June and her comments of the 11th June, notwithstanding the fact that Dr O’Brien was explicit that she was not disbelieving the complainant. Dr O’Brien had found that the mechanism of injury was ‘unusual’ adding that some force was generally required. She commented further that fractures are generally instantly painful, but pain was subjective, and people have different pain thresholds. She stated that swelling could start almost immediately but was not a ‘hard sign of timing.’

The furthest Dr O’Brien went was to say that the mechanism of injury was unusual. Her assessment of the 3rd June was predicated on the drum being 25kg in weight, when it was close double of this. Dr O’Brien’s involvement related to the return of the complainant to work and any corrective action. It is significant that Ms Cassidy never shared her hypothesis with Dr O’Brien in their conversation of the 3rd June.

Ultimately, the respondent concluded that the injury could not have occurred in the way described by the complainant. At no time, was Dr O’Brien ever asked whether she agreed with this conclusion. At the adjudication, Dr O’Brien accepted that pushing at 47kg drum was an act requiring force. She accepted that ‘unusual’ did not mean impossible. This was in reply to the complainant’s questions in cross-examination. These were the questions the respondent ought to have asked Dr O’Brien if she was to be one of the pillars relied on by the respondent to establish substantial grounds justifying the dismissal. Having being told by Dr O’Brien that pushing a 47kg drum required the use of force and unusual did not mean impossible, it was up to the respondent to bolster any adverse findings with other sources of evidence.

Quality & range of evidence - nurse

It is a fundamental weakness in the respondent’s approach not to formally interview the nurse as part of the disciplinary process.

On the first day of hearing, I pointed to the applicable part of the disciplinary procedure, which states under ‘Procedure: Investigation … The purpose of the investigation meeting is to ensure that all aspects of any allegations are fully discussed and documented and to give the employee an opportunity to state his/her case … The investigation may include obtaining information and/or statements from employees against whom the allegations have been made and/or witnesses who either witnessed the alleged offence or can offer relevant information.’ The respondent is not entitled to disassociate itself from the disciplinary procedure, as suggested in its evidence in this case.

It is a glaring aspect of this case that the complainant attended the on-site healthcare professional within minutes of reporting the injury, yet this healthcare professional was not interviewed as part of the disciplinary process.

The nurse’s note states ‘Derek Upton, granulation task, moving ?50kg tub at ground level from a pallet, with non dominant left arm, felt ‘click’, immediate swelling today. Manager rang me 08.18 due to swelling. On examination 08.25: left wrist and hand was swollen, grip ability partial, wrist movement reduced, ice pack applied, in sling for support. Advised to remove wedding ring which he did. Rang Dr O’Brien 08.30. 2nd ice pack applied when first one not as cold. Swiftcare Swords appt arranged for 10.30 today for xray due to swelling, also advised by Dr O’Brien. Will liaise with her later about next CHI appt for Mr Upton dependant on xray result.’

It is clear from this note that there was a rapid onset of swelling, requiring two ice packs and the complainant to remove his wedding ring. The respondent’s hypothesis is that the complainant’s hand was already fractured and swollen at 7.06.16am. If it was so swollen, how could the complainant remove his wedding ring an hour later? The note points to rapid swelling, so what could have triggered this other than moving heavy drums?

The respondent did not advance the fanciful position that the complainant’s left wrist was fractured and swollen but he was able to anticipate the further swelling by timing the onset of the further swelling with moving the drums. Such a position is necessary if the respondent is to argue that there was swelling at 7.06am but the complainant was later able to remove his wedding ring. There would be no plausible basis for the respondent to say that there were two bouts of swelling.

The healthcare professional on site was the obvious source of valuable information. Questions would include: the medical notes suggest a rapid onset of swelling, was this the case? In your professional experience, was it more likely that the injury occurred in the last few minutes or some hours before? Did the complainant blame the system of work for the injury? Is it possible that the left hand was already swollen at 7.06.16am and a second bout of swelling occurred 50 minutes later?

The respondent’s position was that the nurse was not called to give evidence in the disciplinary process because the fact of a fracture was not in dispute. This position ignored the fact that crucially, the timing and cause of the fracture were very much disputed. The nurse’s professional expertise, her immediate involvement and her detachment from the complainant (as an employee of the occupational health provider) meant that she was a rich and objective source of evidence. The respondent could have tested its hypothesis with the nurse and gained information as to how the complainant and the injury presented to her. The respondent’s failure to do so is a significant weakness in this case.

Quality & range of evidence – Supervisor, Mr Rooney

Mr Flood’s evidence was that the respondent generally did not interview staff when investigating a disciplinary allegation against a colleague. He was well-placed to give this evidence as he often represented staff members in individual processes and was an employee representative in the collective redundancy process. I have commented that the nurse was well-placed to give evidence, in particular because of her detachment from the body of operatives. The same can be said of Mr Rooney, the Supervisor.

The Supervisor made the statement of the 3rd June. He outlined that on the 11th May, he met the complainant at the start of the day and assigned him to the Milling Room. He was later in proximity of the complainant moving the drums. The complainant then reported to him that he had injured his wrist and the Supervisor advised the complainant to get first aid.

This accords with the complainant’s account. It is significant that Mr Rooney was not interviewed as he had relevant information to convey about the complainant’s actions and demeanour on the 11th May.

The respondent had to address the issue that the footage of the incident at 7.55am was not at all clear. It chose to look at footage from earlier that morning and previous days. The purpose of this review was to compare the complainant’s actions on the 11th May with other times. It is significant that the respondent relied only on the footage and did not procure evidence from others, for example the Supervisor, who were also directly involved.

Much of the respondent’s case is based on the complainant’s actions at the stepover at 6.34am. This was after the complainant arrived at work (having driven 15km in his manual Subaru). The complainant robed for work in a cleanroom. It is true he awkwardly sought to affix his hairnet with one hand, albeit finished the job with two hands. He is criticised for going to this part of the room without washing his hands. These are omissions by the complainant, but he washed his hands many times on the 11th May and was serious about his health and safety obligations. It is key is that the Supervisor is present at the stepover and visible in this footage, but never interviewed whether he agreed with the respondent’s hypothesis.

The respondent’s hypothesis is that the complainant was able to drive his manual car for 15km to work because he took painkillers. Yet, so the hypothesis goes, within minutes of arriving at work, he cannot even wash his hands because of the pain or fix the hairnet with two hands. This hypothesis would only be possible where a person’s pain relief wears off almost immediately.

The Supervisor was in the room at the time of the stepover. It is very material to hear from him whether there was anything out of kilter with the complainant. Was the complainant out of sorts? Was he in pain, in particular as the respondent’s narrative requires the complainant’s pain relief to be wearing off almost immediately? Was he gingerly using his left hand?

The Supervisor was also present as the complainant went about his business in the corridors and rooms on the morning of the 11th May. The respondent’s position was that the complainant was acting abnormally and not using his left arm. It would make sense to hear from the Supervisor whether he concurred with this hypothesis. The fundamental problem with the respondent’s position is that it inferred these conclusions from CCTV footage when it had better sources of evidence available to it, which it did not explore. The Supervisor was one such source of evidence.

The Supervisor is seen in the other footage of the 11th May and the 10th May. He should have been asked whether the complainant’s demeanour had changed over the two days. Was the complainant reticent about using his left hand on the 11th May? The Supervisor features often in the footage but his perspective never forms part of the respondent’s decision-making process. This is a fundamental flaw in the approach taken by the respondent.

Quality & range of evidence – Evidence of colleagues

As noted, the disciplinary procedures envisage the employer gathering witness statements from those who had a vantage point of any ‘offence’. Mr Flood’s evidence was that this did generally not take place.

As noted, the footage of the incident was not clear. The respondent went to great lengths to bolster its hypothesis by relying on footage of earlier that day and previous days. It is remarkable that the respondent did not simply ask the colleagues in the room at the time of the incident. The respondent could have easily tested its hypothesis with the colleagues best placed to observe the complainant. Was the complainant in pain in the minutes before moving the drums? Was he careful about moving his left hand?

Mr Vincent was a new colleague, and the complainant was tasked with training him. Mr Vincent was in close proximity of the complainant for two of the crucial events: the incident of the 11th May and loading the drum on the 10th May. From the CCTV, the respondent discerned that there were differences in the complainant’s demeanour that sustained its hypothesis. As noted, there were significant difficulties with the footage and any wrongdoing was far from clear. It is, therefore, greatly remiss of the respondent not to interview Mr Vincent. He could have been asked whether the complainant’s demeanour was different over the two days. Was the complainant’s hand swollen or was he in pain while they moved palette trucks in the corridor and before going to the milling room?

Getting a witness statement from Mr Vincent was very much in line with the respondent disciplinary procedure. At the hearing, the respondent sought to disassociate itself from the disciplinary procedure and this requirement. It is not open for the respondent to do this, especially as Mr Vincent and the other colleagues had the best evidence to give, and better than the CCTV footage.

Assessment of the evidence

The respondent cited as substantial grounds to justify the complainant’s dismissal the CCTV footage and Dr O’Brien’s evidence. I have commented above in respect of the quality and range of evidence available to the respondent, much of which the respondent did not avail of. The following is the analysis of the evidence which the respondent availed of as well as of the inferences and conclusions drawn by the respondent.

Pillar 1 – CCTV footage

I have set out weaknesses in the quality of the CCTV footage and what it depicts. I now consider the evidential weight placed on the CCTV footage by the respondent.

The respondent relied heavily on the CCTV footage of the stepover. It was certainly awkward for the complainant to initially use one hand to fix the hairnet. The footage freezes and the footage only depicts the complainant’s back. The complainant completes the task using both hands. It is true that the complainant had already stepped over to get the hairnet and did not immediately wash his hands. Whatever probative value this material had ought to have been weighed against other pertinent pieces of evidence, e.g. having driven to work.

The respondent relied heavily on CCTV footage depicting the complainant carrying out various tasks on the 10th and 11th May. An important point made by Dr Conway was that the lifting of drums was routine. Ditto manoeuvring the palette trucks, removing shrink wrap, opening doors and walking through corridors. I agree that these were all routine tasks in the day of a manufacturing operative in a pharmaceutical facility. I note that the complainant’s general demeanour is casual and relaxed. As these were routine tasks, there is no surprise that the complainant completed these tasks with one hand.

This was footage of an operative completing routine tasks. His doing them with one hand is nowhere near the evidential value required for this evidence to amount to substantial grounds for the dismissal. These tasks do much of the heavy lifting in the grounds set out in the letter of the 28th June and they are nowhere near as probative as the respondent contended. The footage simply does not show the complainant avoiding using his left hand because he has already broken his wrist and is looking for the right opportunity to ‘pin it’ on the employer.

The respondent contrasted this use of one hand on the 11th May from the last clip of 10th May. The task on the 10th May was not, however, a routine role. I have said that the complainant was clear and firm in advising his new colleague about the dangers of the process. It involved loading a drum with heavy granulated product from above head-height. In 2012, of course, a colleague had dropped a drum on the complainant’s hand. I find that the complainant used both hands on 10th May as this was a non-routine, dangerous task. As noted above, the footage of the 10th May conveyed the complainant’s clear commitment to health and safety, in the way he tutored Mr Vincent.

I find that the CCTV footage does not show any inconsistency on the complainant’s part. The complainant’s evidence was that he lifted the first two drums with his right and pushed them with his left. He pushed the third with his foot. The CCTV footage of the incident is not clear and fluid enough to conclude that this did not take place.

It follows that the respondent cannot draw the inferences and conclusions from the CCTV as it claims. The footage depicts the complainant doing different tasks, and his demeanour arises from whether the task was routine or non-routine. He is casual and relaxed completing routine tasks, using one hand. He is alert and careful while loading the drum, using both hands. There is a ready and obvious explanation for how the complainant incurred the injury. He ought to have used both hands at all stages of moving the 47kg drums. While it was a routine job, the action of moving the drums and their weight required his two hands.

It is a fundamental flaw in the respondent’s approach not to take account of the points made by the complainant that challenged its hypothesis. The complainant emphasised his taping a box which, the respondent accepted, is a job requiring the use of both hands. Despite the complainant’s emphasis on this point, the letter of dismissal does not address this matter at all. The taping of the box occurred shortly before the incident of the 11th May. The complainant is seen about to tape the box but the footage freezes. There is no dispute that the complainant taped the box. Completing this task with two hands completely undermined the respondent’s hypothesis, which was that the complainant’s hand was so sore and swollen he could not open doors, push and pull palette trucks and remove shrink wrap. The respondent’s hypothesis becomes unsustainable if taping the box with two hands is factored in.

This fundamental flaw is not addressed in the letter of dismissal. The respondent emphasises the ‘stark contrast’ between the complainant’s actions on the 10th and 11th May but ignored the instances when he did use two hands on the 11th May prior to the incident. The complainant had used both hands in the hour or so prior to the incident of the 11th May, so there was no ‘stark contrast’ to draw an inference of wrongdoing from.

Pillar 2 – Dr O’Brien

The second pillar relied on by the respondent was Dr O’Brien, the occupational health doctor. I have found above that it was remiss of the disciplinary process not to engage with the other healthcare professional, the nurse, who saw the complainant on the 11th May.

Dr O’Brien attended the adjudication and gave impressive evidence. She accepted that ‘unusual’ did not mean impossible and lifting and pushing the drum was an act of force.

The respondent placed great evidential weight on Dr O’Brien’s contribution. First, it placed emphasis on the statement in the letter of the 3rd June that the mechanism of injury was ‘unusual’. Second, the letter of dismissal emphasises Dr O’Brien’s comment in the email of the 11th June that a fracture would usually result from direct or indirect trauma rather than an ‘unusual push-pull movement’. In this email, Dr O’Brien further comments on pain and swelling from a fracture, comments which support the complainant’s account (i.e. that the swelling was immediate and he has a high pain threshold).

In her evidence, Dr O’Brien was clear that she was advising from an occupational health point of view, in particular with regard to whether any corrective action was required. It is unexplained how the note of the 3rd June states that the weight of the drum was 25kg (when this happened to be the incorrect weight also recorded in Ms Cassidy’s initial report). Dr O’Brien was clear that she was not a consultant orthopaedic surgeon. Dr O’Brien was explicit that she did not disbelieve the complainant, yet the respondent relied on her comments to conclude that the injury was impossible, and therefore the incident, contrived.

For completeness, I note that the complainant did see a Consultant Orthopaedic Surgeon on the 10th June 2021 and his report was circulated to the respondent. This set out the complainant’s ‘good recovery’. I note that the respondent did not ask this orthopaedic specialist whether the mechanism of injury was something more than ‘unusual’ and something that was impossible or not plausible.

The height of Dr O’Brien’s evidence was that the mechanism of the injury was unusual in that one would expect to see a direct or indirect trauma, for example a fall. The word ‘unusual’ did not have connotations beyond not being the ordinary. It did not allude to ‘suspect’ or ‘suspicious’ which is how the respondent addressed it. Even though Dr O’Brien was careful to say that she did not disbelieve the complainant, the respondent concluded that it did not believe the complainant because Dr O’Brien had said it was ‘unusual’.

The respondent described that the complainant’s account was inconsistent with Dr O’Brien’s statement, but this is not the case. Dr O’Brien’s statement did not state that the injury was suspect, impossible or implausible, things it would have to have said in order to ground a finding of inconsistency.

The other points made by Dr O’Brien supported the complainant’s account, i.e. swelling could be immediate and the complainant’s pain threshold meant that while it initially felt sore, he completed the task of moving the drums before raising the injury. Dr O’Brien’s comments undermined a so-called inconsistency suggested by the respondent in the disciplinary hearing. This was that the complainant did not ‘break stride’ in completing the task and did not cry out in pain; Dr O’Brien addresses this by saying that pain is subjective, and people can have high pain thresholds.

The respondent’s conclusion of fact that pushing the drum could not have caused the fracture was not sustainable given the medical evidence before it. The height of this medical evidence was that the mechanism of injury was ‘unusual’. It was not impossible or suspect. The letter of dismissal concludes that the complainant’s account is not plausible on foot of Dr O’Brien’s email, but this finding goes way beyond the medical evidence before the disciplinary process. This represents a significant flaw in the decision-making process.

Adherence to fair procedures

I have identified important sources of evidence not availed of by the respondent in the disciplinary process. I have made findings in respect of weaknesses in the disciplinary decision-making process. I next consider whether the disciplinary process was fairly conducted.

The complainant reported the injury on the 11th May and his employment was terminated on the 28th June 2021. He was on certified sick leave and then suspended. He attended the disciplinary investigation meeting and then four days of disciplinary hearing. He subsequently attended the appeal.

A fundamental flaw in the approach of the respondent is that it, in effect, put words in the complainant’s mouth. As noted, the complainant reported the injury and went on sick leave. Apart from telling his supervisor and a colleague and then seeing the nurse, he gave no account of what happened. Yet the respondent’s disciplinary investigation letter refers to ‘your version of events’. The complainant never set out a version of events but simply reported the injury and took a taxi to the Swiftcare clinic.

Similarly, the disciplinary outcome letter refers to the complainant ‘blaming’ the respondent. Nowhere does the complainant blame the company, nor attribute fault or causation to the respondent. All he did was report the injury, in line with his health and safety obligations as an employee. The respondent has inferred that the complainant was blaming it, but there is no factual basis for this conclusion.

It was remiss of the respondent not to consider motivation in assessing the evidence before it. The complainant had nothing to gain by assigning responsibility for the injury to the respondent. He was entitled to paid sick leave, irrespective of the source of the injury. He has not taken personal injury proceedings and nor did he ever indicate that this arose because of an unsafe place of work.

The respondent relied on what it termed ‘inconsistencies’ in justifying the complainant’s dismissal. He was cross-examined on them. I find that the respondent has not established that the complainant was, in fact, inconsistent during the disciplinary hearing. I find that the descriptor used, i.e. ‘crack’, ‘click, ‘bang’, ‘tweak’ are synonymous terms describing the same thing. Describing the action as lifting and then lifting and pushing are also synonymous descriptions and consistent. Mentioning that he used his foot to push the third drum was additional information in response to a question, rather than a contradiction.

The respondent places great weight on what it says is the contradiction of the complainant describing the first or second drum as the cause of the injury. The relevant part of the minutes of the 15th June state:

‘Mr Farrell: Hi Derek & Ken thanks for coming back in we will continue watching footage and review. Just before we review the footage from the minutes on the 1st June you say you heard a crack on the second drum when you pushed it. Yesterday you said when you pushed the first drum you felt a twinge and kept going.

Mr Upton: I got the first drum pushed it. It banged and I felt a twinge then went on to the second drum.

Mr Farrell: So, on the 1st June you said it was on the second drum and in the second meeting you said it was on the first when you feel a twinge.

Mr Upton: You have me all over the place. I demonstrated what I did. I didn’t feel anything major after the first one after the second I felt like I had done something. I’m not 100%. I’m confused and all over the place. I banged the first and then after the second and third drums I said it to [the Supervisor]

Mr Farrell: Why in the minutes of the investigation meeting did you say it was on the second drum that you heard it crack? There was no mention of you banging the drum during the meeting on 1st June.

Mr Upton: Not everything is written down.

Dr Conway: Interesting that it is only after the feedback from Dr O’Brien on how a fracture occurs that you have mentioned banging.

Mr Upton: I pushed the drum through, and it hit off the matcoin bin and the wall. Unfortunately that’s not in the minutes.

Mr Farrell: It is quite a pertinent point. If it was not in the minutes you had a chance to review and amend them. Neither did [Mr Flood]. I am putting it to you that you have contradicted your evidence from 1st June and changed your evidence.

Mr Upton: I don’t think there is a contradiction.’

This exchange is predicated on the questioning of the previous session. It is predicated on the complainant having changed his account the previous day. The day before, the complainant said ‘It felt sore on the first 2 drums, and pain varies from person to person. I am in constant pain with my back. I medicate most days, have to loosen my back up. I have no choice.’ Any reference to the first drum or the second has to be seen in the context of this being a swift series of actions, which the complainant completed in full. Little evidential weight can, therefore, be attached to the complainant referring to the first drum at one point and the second, elsewhere.

In the disciplinary hearing, the complainant consistently referred to the drum hitting off the wall. On the first day, he states ‘I pushed the drum and the drum hit off the matcoin bin and wall in the room.’ On the second day, he said ‘when the drum hit the wall, my hand was on the drum’ Dr Conway replies: ‘The drum is striking the wall, there is material in between the bin and the arm so there would be some absorption.’ Mr Flood replies ‘the product is dense’ and Mr Upton ‘It’s a solid lid that’s banging off the wrist.’

I find that ‘banging’, ‘hitting’ and ‘striking’ are synonymous descriptions of the same thing. It is significant that the complainant refers to the drums hitting the wall throughout the disciplinary process, even before Dr O’Brien’s statement is read out to him. The respondent placed heavy emphasis on the investigation notes. What is striking about those minutes is that the only description of the incident is the seven lines read out by the complainant and the start of the meeting. There were no follow-up questions, and the rest of the meeting reviewed the CCTV footage in line with the Memo of the 24th May.

For the above reasons, I find that the respondent could not conclude there was inconsistencies in the complainant’s account that justified the dismissal.

I have found that the respondent did not explore many sources of evidence open to it, for example, the nurse, the supervisor and colleagues. The respondent followed the approach adopted by Ms Cassidy and placed great emphasis on the CCTV footage. I have made findings on the quality and probative value of the CCTV footage. I have made findings on the inferences and conclusions drawn from Dr O’Brien’s input.

Mr O’Flaherty BL, counsel for the complainant, outlined that the respondent had displayed ‘confirmation bias’, i.e. it only looked for and considered aspects of the case that supported its narrative. It is certainly the case that the complainant pointed to evidence that challenged the narrative. This included his having driven to work and taping the box. It is a fundamental flaw in the respondent’s approach that it did not directly address these significant gaps in the narrative. They are not even mentioned in the letter of dismissal. The fact that an employee can repeatedly raise good points in their favour that are not addressed by the employer conveys that the disciplinary process has not been full or fair.

The complainant criticised the tone of the disciplinary hearings. I agree that the minutes read as if the sessions were argumentative. The complainant was told that his evidence was contradictory and that there were stark differences. There is insufficient discussion of the points made by complainant and Mr Flood, including that the CCTV footage was not depicting like for like.

Overall, the manner in which the disciplinary process was carried out and the tone of the hearings lead to the conclusion that the disciplinary process was not conducted in accordance with fair procedures. A fair investigation process would have cleared the complainant of any allegation of wrongdoing.

Substantive finding

For the reasons set out above, I find that the complainant was unfairly dismissed. I find that there was no basis for any finding of wrongdoing against the complainant. There are inherent contradictions in the respondent’s narrative. The complainant is able to drive 15km to work in a manual car but then, a few minutes later, too sore to wash his hands. His left hand is said to be swollen at 7.06am, but he can still take his wedding ring off an hour later?

The CCTV footage of the 11th May simply does not show an employee avoiding the use of his left arm. It shows an employee doing routine tasks. The respondent places no weight on the footage that supported the complainant’s account, e.g. taping the box. The CCTV footage of the incident does not contradict the complainant’s account of what happened. The CCTV footage of the 10th May depicts the complainant doing a challenging task as he is training in a new colleague. Overall, the CCTV footage does not support the respondent’s narrative.

Dr O’Brien’s statement was that the mechanism of injury was ‘unusual’ and there would normally be trauma. Dr O’Brien’s statement could not ground a finding that the injury was impossible or implausible. Part but not all of what she said was used to bolster the respondent’s narrative. Dr O’Brien agreed with the complainant’s account in respect of him not recoiling immediately and that swelling could be immediate. The respondent does not account for these aspects supportive of what the complainant was saying.

As noted, the respondent narrowly conducted the disciplinary process on the CCTV footage and part of what Dr O’Brien said, rather than exploring the whole range of evidential sources available to it. The nurse had crucial evidence to give, as did the Supervisor. They were better sources of evidence than the CCTV footage. The respondent could have also interviewed colleagues. Overall, I find that the disciplinary process was unfair as it was too focused on proving a particular narrative. A fair process would have cleared the complainant of any wrongdoing.

After his dismissal, the complainant pursued the appeal. The appeal adopted the same approach as the disciplinary process. While the appeal looked at more CCTV footage, the appeal process shared the same deficiencies as what had gone before.

Redress

As redress, the complainant outlined that he was seeking reinstatement. The complainant relies on paragraphs 66 and 67 of Bank of Ireland v Reilly [2015] IEHC 241:

‘66. I have already concluded that the bank’s conduct in this case was unreasonable and disproportionate. I would add to that by saying that the manner in which it predetermined and manipulated the entire process from the outset reflects little credit on it and visited a very grave injustice on Mr. Reilly.

67. In my view, an award of compensation would fall far short of providing adequate redress in this case and the only appropriate remedy is re-instatement.’

I find that re-instatement is the appropriate form of redress in this case and the one that is just and equitable. I note that the facility has since closed in line with the ‘sticky’ collective redundancy process engaged in 2021. I would order re-instatement even if the respondent facility was still in operation. It was not disputed that the complainant was an exemplary, hardworking employee since the start of his employment in 2008. There is no evidence of any friction, disharmony or acrimony involving the complainant. I have found that there was no basis for any finding of wrongdoing against the complainant in respect of the 11th May. He should, therefore, be reinstated to the employment he was unfairly dismissed from.  

CA-00044815-001

For the reasons set out above, I decide that the complainant was unfairly dismissed and, pursuant to section 7(1)(a) of the Unfair Dismissals Act, I order the re-instatement by the respondent of the complainant in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal.

Unfair Dismissals Act / sources of evidence / fair investigation / re-instatement