Complainant

Respondent

Anonymised Parties

A Worker

A Manufacturing Plant

Representatives

Barry Crushell Crushell & Co Solicitors

Terry MacNamara IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042673-001

23/02/2021

1.0 Introduction 

1.1         This case concerns a complaint by the claimant, against his former employer  the Respondent, under the Unfair Dismissals Acts 1977 to 2015.  The claimant alleges that he was unfairly dismissed by the respondent.  This claim is denied by the respondent.  The claimant was dismissed for failure to return to work when found fit to do so after 9 months absence and that the sanction of dismissal was not disproportionate in such circumstances. 

2.0 Company Background

2.1         The respondent is a large manufacturer in the UK & Ireland, pioneering unique in-house integrated power solutions tailored to each individual client project. The Company believe that people are their best asset and have invested in a highly qualified and experienced team of Chartered Engineers to work in their manufacturing facilities across three continents. The Company has over 30 years’ experience in delivering high quality integrated power solutions, our team are experts in providing technical services, project management services and unrivalled customer support for every client project.  There are 1200 employees based at the plant site .

3.0 Background to Complaint

3.1         The claimant commenced employment with the respondent on 11 November 2018 as a general operative at their site.   The claimant received a contract of employment, including acknowledgement receipt of the company Handbook and acceptance of all internal policies and guidelines on 31 October 2018.  

3.2         The claimant commenced a period of sick leave on the 5th of February 2020 the claimant was sent for an occupational health assessment to Dr.P  Occupational Health Consultant, on the 10th of August 2020.   Dr.P confirmed that the claimant was fit to attend meetings and that there was not a medical matter.

3.3         On Receipt of Dr P’s medical report the claimant was invited to attend a meeting on Monday 24 August 2020 which he failed to attend.   The claimant was invited to a reconvened meeting on Tuesday the 01 September 2020 which he again failed to attend.   On the 07 September 2020 Mr.GK  HR manager for the respondent, wrote to the claimant inviting him to a further meeting scheduled for Tuesday 15 September 2020. In this letter Mr.GK confirmed that the respondent expected mandatory attendance in line with the terms of the claimant’s contract of employment and the respondent’s absence management procedures. He also highlighted that Dr.P  had recommended that “in effect this is an employment not a medical matter and I recommend management meet the claimant  to resolve this as soon as possible”. Mr.GK  indicated that the purpose of the meeting was to discuss the issues at hand and plan for the claimant’s return to work as soon as reasonably possible.   Mr.GK also indicated to the claimant that a failure to attend this meeting will result in an escalation of this issue.

3.4         The claimant attended a meeting on 15 September 2020 with Mr.GK and Mr.PB   production manager.  During the meeting Mr.GK  confirmed that the claimant had been absent for approximately 9 months on a continuous basis and that this had caused significant upset in the scheduling of workloads on a temporary basis which could not continue indefinitely.   On the basis that the claimant was declared fit to return to work Mr.GK  wrote to him on 28 October 2020  highlighting that the respondent had a responsibility to make him fully aware that it would not be possible to hold his job open indefinitely in the absence of an expression of a fixed return date to return to work which was set as Monday 09 November 2020.   Mr.GK also clearly cautioned the claimant that failing to achieve this the respondent may have to consider terminating his contract of employment on the grounds of his incapacity/unwillingness to complete the work for which he was contracted to do.   Mr.GK emphasized that the respondent was highly reluctant to make such a decision as they would prefer to remain focused and committed on assisting the claimant’s return to work.

3.5         The claimant responded to Mr GK’s 's letter by email on the 03 November 2020.   In this email the claimant alleged that health and safety concerns were preventing his return to the workplace.  

3.6         On the 04 November 2020 Mr.GK responded to the claimant dealing with each of the issues raised in the claimant’s email concerning health and safety.  Mr.GK  stressed that the health and wellbeing of the claimant was not being endangered during his employment with the respondent and that he had been issued with a full company uniform with appropriate PPE for the role in which he was employed.  Mr.GK  further confirmed that the health and safety department of the respondent had confirmed that the claimant's place of work was safe and met with all of the required health and safety industry standards and that there had been no ‘near misses’ as alleged during the course of the claimant’s employment with the respondent.  Mr.GK  again urged the claimant that he must return to work on Monday the 09 November 2020 or the company may have to consider terminating his contract of employment on the grounds of his unwillingness to complete the work which he was contracted to do.

3.7         The claimant did not return to work on 09 November, nor did he make any contact with the respondent.

3.8         On 11 November 2020 Mr.GK wrote to the claimant informing him that he had regrettably failed to return to work on the appointed date of 09 November and that no communication was received by the respondent.  Mr.GK further stated that as the claimant was medically capable of a return to work and had now had nine months continuous absence his unwillingness to return to work could no longer be absorbed by the respondent.  Mr. GK indicated that following a review full consideration had been given and having exhausted all other avenues the decision had now been taken to terminate the claimant’s employment with immediate effect due to his long-term absence on a non-medical issue as determined by Dr.P’s occupational health report of the 10 August 2020.  Mr.GK confirmed that the claimant could appeal this decision to Mr.DMcC Group Production Director, in writing within five working days of receiving the decision to terminate his employment.  

3.8         The claimant did not appeal the decision to terminate his contract of employment by the respondent

3.9         On 03 March 2021 the respondent received a complaint form alleging unfair dismissal by the claimant through the WRC.

4.0         Company Position

4.1         The occupational health report, as conducted by Dr.P MBBS FRCPI FFOM on 10 August 2020 indicated the following: -

·     The claimant does not require adjustments to his duties

·     the employee is fit to attend meetings and participate in dialogue with his employer, and this is important because the workplace issues are the barrier to a successful return.

·     There is no medical reason why the claimant cannot provide regular and effective service in the future.to work.

 4.2        At all times, it has been accepted practice that a prudent employer has a right to make decisions based on Occupational Health professionals medical reports.

               The claimant frustrated this process initially whilst the respondent was attempting to organise a meeting to discuss the occupational health report.  Eventually when he did attend a meeting on 15 September 2020, he alluded to spurious allegations of breaches in health and safety by the respondent.  It is worth noting, the respondent, pride themselves on providing a safe working environment for all 1200 employees. In 2008 the company gained ISO18001 accreditation for Health and Safety and has consistently maintained this accreditation undergoing rigorous inspections and audits since then. In 2018 the company gained further ISO accreditation under ISO4500, by the industry leading auditors in their field. In addition to this the respondent undergoes routine unannounced health and safety inspections from both the Health and Safety Authority and the local authority one of which of which was conducted in September 2020 ensuring the maintenance of a safe place of work for all.  M.GK confirmed all of this to the claimant in the meeting of 15 September and that the Respondent’s health and safety department had confirmed a safe place of work for the claimant.

4.3         The claimant was given explicit details by the respondent as to what was defined as a mandatory return date to work being 09 November 2020 and what the subsequent result would be if he failed to adhere to this deadline, namely the termination of his contract of employment.

4.4         Despite all of the warnings, the claimant failed to return to work, under protest if necessary, and the respondent was left with no choice but to terminate his contract of employment.

4.5         The claimant was given a clear right of appeal by the respondent which he did not avail of. The respondent submits that the claimant had a responsibility to exhaust all internal appeals procedures before bringing a claim to the WRC and his failure to do so was a fundamental flaw in his claim and therefore it should fail. There is a multitude of case law supporting this assertion including Murphy v Chartbusters Limited, Employment Appeals Tribunal UD321/2009 where the Tribunal determined that “The claimant had a responsibility to exhaust all appeals procedures before bringing a claim to the Employment Appeals Tribunal. His failure to exhaust the appeals process is a fundamental flaw in his claim and the Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 fails”. Copy attached

4.6         The respondent submits the dismissal was substantively and procedurally fair. The Complainant's dismissal resulted wholly from his own conduct and failure to return to work when declared fit to do so.  We respectfully request that the Adjudication Officer find in the favour of the Respondent.

4.7         The Respondent reserves the right to submit further arguments and evidence at any stage during the course of this investigation.

Witnesses:-

             Production Manager

             Health & Safety Manager

HR Manager

Summary of Pertinent Evidence of Mr.B – Production Manager

Mr.B asserted that the claimant made a host of health and safety allegations against the respondent which the claimant had not raised with him prior to the 15th.Sept 2020.He referred to the opportunities for workers to raise Health & Safety concerns- he referred to regular team meetings and  a.m. production meetings.  When asked if Health & Safety concerns had been brought to his attention by the claimant, he said no.

 He referenced issues with the milling machine and confirmed that exhaust ventilation was provided. He stated that sometimes tasks would be done manually. He denied that the machine would be out of action for up to 6 months and denied he had aggressive interactions with the claimant on the remedial works. The witness said he was unaware of any improper set ups. He asserted that the staff were wearing masks. When questioned on the cable issue raised by the claimant , the witness said   that the maintenance operative  implemented what had been recommended by the claimant with respect to the cable for the switch. . The witness said that the plant was subject to inspections by external customers as well as by regulatory bodies including the Health & Safety Authority and was obliged to meet regulatory standards. He denied the plant was an unsafe workplace.

Under cross examination , the manager  confirmed that Induction Training on Health & Safety was done by the Health & Safety manager Ms.GK.The manager stated that he was unaware that the claimant suffered from asthma and asserted that if there was any issue with the quality of masks the matter would be referred to the Health & Safety Manager.The witness said that they purchased their masks from reputable suppliers. He said he was never told the witness suffered from asthma.

The witness said he was the production manager when asked about his role in the termination of the claimant’s employment. He said he was not asked to carry out an investigation – he was part of a group including Mr.GK and  Ms.SL that decided on termination and that they followed the company handbook. The witness confirmed that he had a line management role and that there had been no performance issues with the claimant; no disciplinary issues ; that he was punctual and was not regularly absent from work. The witness referenced the claimant’s commentary about exposed wires and asserted that alternative arrangements proposed by the claimant were not an option – the witness said that the claimant was asserting that the entire area was unsafe – which the witness disputed.

Summary of Pertinent Evidence of Health & Safety Manager  Ms.GK

The witness gave an overview of her qualifications and experience and said that Health & Safety was over seen by a Health & Safety Team which included 6 employees. She said the company adhered to all regulatory standards and had BSI and ISO certification. She referred to unannounced visits by company clients. She said training records were maintained and employees would be spoken to about Health & Safety issues. She confirmed that the company had failed an audit. The Safety Committee met every 8 weeks and included employees from every area .She was unaware of a Safety Rep. raising the issues that the complainant had referred to in his submission.  The witness said there were notice boards throughout the workshop floor about the Safety meetings. The witness said 2 inspections had been carried out by the Health & safety Authority – 1 arose from an anonymous complainant – she asserted that the matter of ventilation had been deemed to be adequate as also was the training of operatives. The witness said that  BSI certification required 6 monthly assessments and their dust extraction systems were certified by an external company. The witness said   the Health and Safety Authority had carried out a  full  on site inspection  in December 2020 – as with any other audits the inspectors stopped and spoke with the employees – the outcome was successful and there was no improvement or contravention notice issued .The witness confirmed that air quality testing was conducted by an external company who come in annually to do the tests. The witness said the plant has local exhaust ventilation. The type of masks to be utilised would be based on the task and gave an example of the use of FFP3 masks where grinding was taking place. She said the choice of mask depended upon the type and duration of exposure and was not cost based.

Under cross examination,  when asked who decides on risks where they cannot be eliminated or controlled ,the witness said that Health & Safety risks would  have  been identified before her time. The witness was unaware of the cost of safety boots. She was asked if any special arrangements applied to workers with asthma  she said none were brought to her attention. She said the type of mask provided was based on the type of  particulate matter. She referenced the BSI standards and the inspections that were carried out by the statutory bodies including the local authority and the Health & Safety Authority. She referred to the operation on site of the Health & Safety committee. She rejected the claimant’s contention that he needed permission to go to  the toilet and stated  that it would only arise if some one was assigned to a line.

The witness was referred to the provision in the disciplinary procedure about the right to be represented by a colleague and the provision for suspension  pending an investigation. She was referred to the policy on well being and the reference by Dr.P to industrial relations issues.

 Summary of Pertinent Evidence of Mr.GK – HR Manager.

The witness said that the company had followed procedure having regard to the Occupational Health report – it was the long term company policy when a worker was off sick to engage with them on returning to work. The witness confirmed that he had engaged with the Health & Safety Officer during October – the witness stated that the Health & Safety allegations raised by the claimant were without foundation. The witness said it was very clear that there was an unwillingness on the claimant’s part to return to work .He said the occupational health report was clear. He said the company tried to encourage the claimant to return to work and assure him that the place was safe. The letter of termination was based on the claimant’s unwillingness to complete the job he was contracted to do. The witness did not consider the matter to be of a medical or Health & Safety  nature or of an absence nature. The employee was unwilling to return to work after a protracted period of time. This was a single period of long term absence.

Under cross examination the witness was referred to the employee handbook and references to absence policy – he said it was clear to him this was not an absence issue and  that the company  could assist the claimant’s return to work. The contract was frustrated and the witness said he tried to facilitate his return to work .The witness confirmed that the claimant at this time was medically certified. They had engaged with their Occupational Health adviser. He confirmed that failure to return to work and to fulfil his contract were the issues. He disputed that disciplinary issues should apply. The witness said this was a non disciplinary issue at this point. The witness said that despite his best efforts the claimant failed to accept what the company were saying to him. The medical report made no references to accommodations being needed .It was put  to the witness that an unwillingness to return to work could be construed as misconduct – the witness replied that this was a unique set of circumstances – it was fair and clear where this could lead to. When asked if an investigation took place , the witness replied that the whole process was an investigation. It was put to the witness that there were procedures in place – the witness responded we gave him the right of appeal but none was submitted. When questioned under what policy the claimant had a right of appeal , the respondent said this was highly unique and not detailed in company policy – there was a complete unwillingness on the part of the claimant to return to work .It was put to the witness that the employee handbook provided for an investigation. The witness replied we were working with the information we had to hand and the situation developed from there. According to the witness , the  claimant was fairly treated and given the right of reply.

The witness did not consider the matter to have been prejudiced by virtue of his involvement in the case. The witness re iterated this was not a misconduct issue. The witness was asked if  demotion was considered , he replied that demotion did not arise for a production operative. The witness said the company did consider a precautionary suspension. The company was concerned that a final written warning could have triggered a disciplinary process. When asked if he accepted  how the claimant could have expected a different outcome when the grievance and disciplinary procedures applied , the witness said he could not answer that question. The witness said the claimant could have written to Mr.Mc C when asked if it was fair and reasonable that the claimant could lodge an appeal under ambiguous circumstances.

On  redirect the witness said no correspondence was received from the claimant – it was the claimant’s decision not to return to work. The witness confirmed he requested Ms.GK to examine the issues raised and speak with personnel qualified to look at Health & Safety. The witness confirmed no recommendations issued from Occupational Health with respect to asthma. The witness said there were many examples of where the company made accommodations.

In response to the claimant’s allegations regarding health and safety matters within the plant , the respondent issued the following  supplementary submission in May 2024.The submission contained the following documents :

*Letter from Health & Safety Inspectorate referencing site visit on 8.09.2020

*Response letter DMCC Production Director 9 April 2020

*BSI Certification ISO 45001:2018

*BSI Certification ISO 9001:2015

*BSI Certification ISO14001:2015

*Sec 3 Pictures of areas within plant relating to HAS Query

*Sample Abrasive Wheel Training Certificate

*Sample Manual Handling Training Certificate

*Sample Risk Assessment Communication Worksheet

*Risk Assessment Sheet Conductor Grinding

Risk Assessment Sheet Using 4 inch Grinder

Royal Mail Proof pf Delivery Documents

In summing up the respondent’s representative said the respondent was one of the biggest employers in the region and was being presented by the claimant as a slip shod operator – he asserted that the evidence presented by the company contradicted that. The company trades with some of the largest global brand names including google and facebook . It was submitted that the company had been subject to audits by the Health & Safety Authority and the local authority .The attempts by the company to assuage the concerns of the claimant with respect to Health & Safety matters did not satisfy the complainant. It was submitted that the company had responded directly to the Health & Safety Authority. The company had engaged with the claimant over a 9 month period on several occasions to effect his return to work. It was submitted that this was not a disciplinary measure and he was still in the employment of the company. As set out in the authority invoked by the respondent  Murphy v Chartbusters Ltd. EAT UD321/2009 , there was an obligation on the claimant to exhaust all appeal procedures before making a complaint to the statutory agencies and it was advanced that the complainant’s failure to do so  was fatal to his claim.In his own evidence the claimant had confirmed that while still in the employment of the respondent he was actively seeking employment elsewhere. It was submitted that the employer did not want to terminate the claimant’s employment but were left with no alternative when the claimant would not return to a safe place of work.

The claimant submitted as follows :

1.      Background

2.      The Complainant in this matter resides in the Northwest.  The respondent in this matter is an Engineering Company  in the Northwest.

2.1.     The Complainant was employed by the Respondent as a production operator.

2.2.     The Complainant, throughout the course of his employment, raised a number of health and safety issues.  These issues speak to the attitude within the Respondent company as to the health, safety and welfare of their staff.

2.3.     In the first instance, on commencing employment with the Respondent company, the Complainant was required to bring his own Personal Protective Equipment (PPE) with him.  He looked for safety boots but was later informed that he would need to be within the company for one year before he would have such an entitlement.

2.4.     A second health and safety concern raised by the Complainant was the failure of the Respondent to provide Respiratory Protective Equipment (RPE).  The Complainant suffers asthma and felt that this was only reasonable, given the particular working requirements of the job he was tasked with undertaking.

2.5.     A third safety concern raised by the Complainant related to the electrical configuration of a new machine that had been purchased by the Respondent.  He noted that the manner in which the machine had been set up created a high degree of probability that he might be electrocuted as a result of its use.  The Respondent did take measures to address his concerns but these measures fell short of what was ultimately required as the Complainant noted that it ultimately created a trip hazard for him which had the potential to maim or cause fatal injury.

2.6.     That being the case, as a consequence of the stress and anxiety the Complainant endured having worked in an unsafe environment, he went on sick leave.

2.7.     The Complainant was on certified sick leave from 02 February 2020 until 02 February 2021.  We note that, during the course of his sick leave, the Respondent terminated the employment of the Complainant with effect from 25 November 2020.

2.8.     The Complainant was asked to attend the occupational health specialist, reporting to the Respondent company, which he did.  The occupational health therapist noted that the Complainant could be fit and health to return to the workplace, however, certain precautions would be needed to provide a safe place of work for the Complainant.

2.9.     The Complainant was asked to attend certain meetings in November 2020.  These meetings related to his ongoing employment with the Respondent company.  The Complainant contended that attending these physical meetings were unnecessary and contrary to the prevailing health and safety advice being given by governments on both sides of the border, North and South.  However, he attended a second meeting wherein he requested union representation due to the heightened stress and anxiety he was suffering.  He was told that he would not be afforded any opportunity to consult, confer or bring a union representative with him.

2.10.  He was subsequently dismissed.

2.11.  During this same period, the Complainant informed the Respondent company that he was not at his home address and sought all correspondence to be sent to him via email.  Despite this, the Respondent company sent him an appeal letter, by post, to his home address.  The Complainant only received this letter after the period within which he was due to make an appeal, had expired.

2.12. The Complainant contends that the Respondent company failed to provide him with a safe place of work.

2.13. The Complainant contends that the Respondent company dismissed him while he was on certified sick leave.

2.14. The Complainant contends that the Respondent company failed to afford him any due process or fair procedure with respect to the dismissal process.

2.15.  That being the case, the Complainant has raised a complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977.

2.      Personal Statement of the Complainant

2.1.   I started work  with the respondent on the 12th of November 2018, not the 11th of November 2018 as stated in the respondent’s submission. I received a letter informing me of my employment commence date, which also informed me that I had to bring safety boots with me on my first day. I had been working in construction previous to my employment  so I already had a pair which were provided some months previous. Having asked other new starts if the same was asked of them, I realised that this was common practice for new starts at the factory. After approximately six months I asked  the  floor supervisor, as advised by my team lead support Mr.KD, for a new pair as the pair I brought with me on my first day were now hurting my feet. I was advised by  the floor supervisor  that I had to be working there one year to qualify for safety boots. I told him that I did not think this to be correct, that I should be provided with a pair as I required them, to which he stated that I was wrong. I also asked Mr.MC, another floor supervisor and got the same reply. I went out that weekend and purchased a pair costing £55. I informed the  floor manager (Mr.LC) on the following Monday that I did not think it fair that I should pay for PPE on minimum wage. As the boots had already been purchased  he told me to get on with it and leave it at that which I did. I did not wish to be seen as a trouble maker. On the 12th of November 2019 I requested a pair of safety boots again, as I was now employed there one year. I had to keep asking for the next two months and was continually told that they had not got my size but that they were ordered. I finally received a pair of safety boots at the end of January 2020 after approximately fourteen months of employment.

2.2.   At the commencement of my employment I was employed initially in final assembly for a few weeks, then was moved to the pre-finish aluminium section. I am a time served metal fabrication engineer so this role suited both my training and my experience. I was initially tasked with learning how to operate a CNC milling machine. At times when the machine was down or when it failed the process, the function carried out by this machine had to be done manually. This involved manually removing paint from the ends of prefinished aluminium extrusions with a Makita belt sander. This was to facilitate an earth contact between the products when installed. I was given no instruction on abrasive wheel usage, but had previously trained in this process decades ago during my four year engineering apprenticeship. I thought it strange at the time that I was not asked if I had abrasive wheel training but carried on with the task regardless as I knew the risks and was competent in the task.

2.3.   I asked initially for RPE, to which I was given a dust mask. I found this to be inadequate and asked my team lead support for the same RPE that was used in the welding bays. I was told they were too expensive and that a dust mask would do as it was periodic work when the machine was down, or did not remove enough paint when processing the extrusion. I felt as I was a new enough employee that I would not cause a fuss, although I did ask to see a risk assessment for this process which would have outlined any dangers associated with the task, and the measures required to eliminate the risk. I was never given one, nor did I sign one for this task. As production increased, an operator was tasked with manually processing the extrusions on a full time basis, as the machine, and then a subsequent machine could not keep up with new production demands. This meant I would no longer have to carry out the task. I was moved onto another machine, and then subsequent machines as my employment progressed. The operator now tasked with manually removing paint from the extrusions was put at a makeshift bench beside the aluminium stores .He was placed beside a huge shutter door presumably to allow the dust to escape out the door. This had the opposite effect as the dust was blown in and around the floor; around the material stacked in racks adjacent to the operator’s bench; and into the environment in which I was breathing. 

2.4.   With the dust on my material, in the environment and subsequently on my clothing, I used an airline to blow both the material and my clothing down periodically. This was common practice throughout the factory at that time. On the commencement of a shift one day, I was told not to use the airline as the dust had set the fire alarm off on the previous shift. This was a common enough occurrence. I asked the floor manager and the team lead support again for proper RPE, or at the least a hoover to remove the dust from my clothing and material. This request was met with a brush that a person would use to brush off a suede coat for example, and an extra brush and shovel for the floor. This was inadequate in my view and I made my views known to the floor manager several times during my last couple of months at the factory. The bench which the operator was using had no ventilation nor did the area in which the process was being carried out. There were downdraft tables in another section where paint was removed from another part of the product (the copper or aluminium conductor). This section was adjacent to the aluminium section. These downdraft tables had been moved following the opening of an extension and were never connected back into a ventilation system for the duration of my time at the factory. This also polluted the working environment.

2.5.    After a period of time I found my breathing affected by the polluted environment in the aluminium section and adjacent section. It had become so severe that I had to go to my GP for consultation and medication on (…..). My doctor informed me that I had (…..) and put me on certified leave for (…..) days. I was prescribed with a steroid nasal spray, an inhaler, and a steroid tablet. This was the first time I ever had breathing trouble, or had been prescribed with any of the drugs given by my GP. I returned to work after this period of absence and produced a certification from my GP, as well as the medication proscribed during a return to work interview with the floor supervisor J. At this stage, the respondent was aware that I was having respiratory trouble as a result of the tasks being carried out as I made J aware of the situation during that interview.

2.6.   During my time at the factory I was trained on several machines that carried out different processes required for different parts of the product. I was viewed as more than competent, and a willing participant in the team within the section. I knew more about the machinery and the product than almost everyone on my shift, some of whom had been there more than five years. I was seen as a good employee and a good worker which was reflected in the reviews carried out by my team lead support. The only negative aspect of one of the reviews was my period of certified sick leave which I found absurd, and two or three days where I was minutes late clocking in. I had a glowing report but only a satisfactory conclusion. I found this at this stage to be unreasonable but failed to take it further as I felt that there was no point.

2.7.   One such machine I was trained on was an undercut chop saw used to cut aluminium extrusion lengths to sizes required by the customer. There were several of these machines in use throughout  the plant  and I was competent on all of them. A new one was bought to help with the increased production needs and I was asked to run it during my shift which I agreed to. The dust issue was still a problem as I had to bring material from the racks to my machine. This included loading trollies and wheeling the material to my machine. The dust would travel onto my clothing during loading, and then onto my machine when operating. As this was a new machine, as typical during my employment, the machine was not set up properly. It was partially installed so that it could run and meet production needs. The new machine, unlike the others that had already been in use, had no extraction system connected. The extraction system aided the machine as it removed the metal swarf from the machine during the cutting process into a bin that was emptied at the end of the last shift on a Friday evening. A subsequent drawer was present at the bottom of the machine at floor level, to clean out the area under the machine close to the motor housing. This drawer would also collect swarf and was usually emptied at the end of the shift.  At the commencement of a particular shift the machine failed to start. I raised the issue with the team lead support . He isolated the machine and took the side off it. The swarf had gathered in the drawer to such an extent that it filled up to the level around the motor housing. The air intake on the motor housing had blocked forcing it to overload. We both cleaned the under-compartment of the machine, the motor housing, and emptied the drawer. The machine worked again. I was instructed from then on to check it periodically and to empty it as required. This involved removing the drawer at the side which was on wheels, and manually transferring the swarf into cardboard boxes for disposal. The lack of ventilation  to the machine meant that again, my clothing was contaminated with swarf; my pockets had aluminium shards in them for example. This was then transferred to my home and into household appliances and elsewhere within. I made both the team lead support and the floor manager aware of this several times.

2.8.   The machine, unlike the other machines already in use, had no roller bench on the left-hand side of the machine making it difficult to operate depending on the size of the extrusion to be cut. I again raised this with the floor manager and the team lead support. I was told that the machine would be properly set up when the maintenance fitter was free to set it up. He worked mainly on his own at that time in a busy environment were machines were continually down. In my view,  as long as the machine was turning, the proper set up went down the list of priorities.

2.9.   The job of cutting required a computer screen to give the sizes which at that time this machine did not have as again it was not set up properly. I had to go to another computer station, write down the sizes manually, then return to the machine and begin cutting. I came on a shift, my last shift at the factory, and noticed an immediate problem. A new computer was installed adjacent to the machine, and was powered by an unprotected cable that was hard wired to a socket on a steel stanchion behind the machine. The cable travelled down the steel stanchion and fixed to it using cable ties. It travelled unprotected across the floor behind the machine, then under the machine, and into the computer cabinet that had been installed. As there was no ventilation connection, as outlined above, the drawer had to be removed and emptied more than normally required. This now involved pulling the last two wheels of the drawer over an unprotected 240v cable endangering the operator. I raised this with the team lead support and refused to use the machine. The team lead support then raised it with the floor manager. We all agreed that it needed to be protected. I suggested a safe way of delivering power to the computer overhead which was ignored. The cable was moved, protected, but raised up approximately ten inches so as not to cause obstruction to the drawer that had to be emptied. This now created a trip hazard which I again raised with the team lead support. His advice was to be aware of it but not to raise it as it would mean the machine would be down for the shift affecting production. I did raise it with the floor manager against the team lead’s advice and was told that it was safe and to get on with my work. By this stage I had had enough of the stress and anxiety caused in my view by a lack of awareness and due diligence towards my health and wellbeing. I had continually raised issues pertaining to health and safety, or the lack of in my opinion, and was ignored time after time after time. I was becoming anxious going into work which was affecting my mood and my sleep and had been for some time. The next morning I phoned in sick and soon after I contacted my GP for consultation. My GP put me on certified sick leave.

2.10.                  On the 3rd of August 2020 I received an email (ref 1/1, 1/2) from HR advising me that I was to take a telephone assessment on Monday August 10th 2020 with the respondent’s appointed Occupational Health Therapist (OHT). I took the call willingly on the day organised and spoke with the OHT. I raised the issues outlined above with the OHT who subsequently presented a report (ref 2/1, 2/2).

2.11.                  I received a letter (ref 3) from the respondent dated the 26th of August 2020. In this letter it stated that I failed to attend a meeting on Monday 24th August 2020. I received no notification for this meeting by post. Communication previous to this was by email. I advised the respondent of this by email (ref 4) on the 31st of August 2020. I did not fail to attend this meeting. It is my view that the respondent has excluded some of the facts so as to mislead the adjudicator.

2.12.                  The respondent in the letter (ref 3) requested that I attend a subsequent meeting on Tuesday 1st September 2020 at 11.00 am. I advised the respondent in the same email (ref 4) that I was unable to attend this meeting due to COVID19 restrictions on both sides of the border. Government restrictions and guidelines stated at that time that "unless it is absolutely essential for an employee to attend in person, they should work from home". I asked for reasonable adjustments to be made and if another means of holding a meeting were available? I advised the respondent that I was willing to discuss my current ongoing absence without attending. This was the case with the OHT’s assessment which ordinarily would have occurred at his practice as pointed out by him during our call. I also advised the respondent again, according to government guidelines current at that time that an employer must encourage employees to work from home where they can. Businesses had been advised by the government to facilitate remote working where possible. In regards to that scheduled meeting, I advised the respondent that it could be facilitated by way of a video call. I did not fail to attend this meeting and would question whether or not another reasonable employer would behave in this manner? I feel the respondent is being unreasonable and has excluded some of the facts so as to mislead the adjudicator.

2.13.                  I also in this email (ref 4) advised the respondent that my partner had a newborn baby at home, who was then one week old. I requested that the respondent facilitate and schedule a meeting via video call for the beginning of the next week under those circumstances. I felt I was well within my rights under the current situation of COVID 19 lockdown, and under current government guidelines on both sides of the border, to refrain from attending the factory when other means of conducting a meeting remotely were at hand. I also requested a current copy of the company's absence policy which I am still waiting on being furnished with. I received an email (ref 5) on the 1st of September 2020 from the respondent explaining that further correspondence would come via post to my home address which I had advised I would not be present at for some time. I responded on the same day by email (ref 6) pleading for modern communication to ensure no breakdown in communication occurs. I again reminded the respondent that I now had a one week old baby at home and for reasonable adjustments be made under the circumstances.

2.14.                  On the 3rd of September 2020 I again emailed (ref 7) the respondent requesting that further communication be via email. As an employer I informed the respondent that they were duty bound to ensure modern communication between employer and employee when such a request was made. I advised the respondent that given the fact that both the respondent and myself had use of email, this was a reasonable request. The respondent replied by email (ref 8) on the same day advising me that “I suggest you check your post at home” and to deal directly with Mr.GK (HR) as he was handling this matter along with Mr.PB Manager. I again would question whether another reasonable employer would respond in the same way?

2.15.                  These reasonable adjustments were again refused by the respondent, who insisted that they would only reply by way of mail, even though I had failed to receive mail yet answered every email sent within a reasonable timescale under the circumstances. This in my view was completely unreasonable in light of a global pandemic, in light of government guidelines around COVID 19 on both sides of the border, in light of me having a newborn, and in light of me expressing the fact that I would not be home for some time due to all of these factors. I feel that these measures were employed to frustrate the process outlined by the OHT as a requirement for my return to work.

2.16.                  On the 7th of September 2020  the claimant  wrote to  Mr.GK outlining how I was in communication with Ms.SL in relation to my return to work. I informed the respondent that she suggested that any further communication should be made through him. I told him that I informed Ms.SL  that due to family commitments I would not be home for a period of time. I informed him that I was staying at my partner’s house as we just had a baby on August 25th 2020. I told him how I requested, that due to me missing a letter, future communication be made by means of email to ensure that I was informed of any requests made by the respondent regarding my return to work meeting or any subsequent communication relating to the process outlined in the OHT’s report to facilitate my return to work. As an employer I again reminded the respondent that they had a responsibility to ensure that communication be made by way of modern means where I as an employee requested that. Under the circumstances I again requested that a reasonable adjustment be made so that no further communication would be missed. I advised the respondent of my belief that this was a fair request and was my right as an employee. On the same day I received a reply email (ref 10) from the respondent. I was again told that the Company would formally communicate via posted letter to my home address. I was also told that a meeting had been arranged for Tuesday 15th of August at 9.00am at the respondent’s  Offices. This again was unreasonable in my view. The respondent was forcing me to cross an international frontier against government guidelines on both sides of the border in light of a global pandemic, and forcing me to attend their facility when, as the governments on both sides of the border had advised: remote working and remote meetings were a requirement if the employee had no reason to attend work in person.

2.17.                  I also asked at this stage to be accompanied at the meeting with a union representative as my stress and anxieties had been heightened through my attendance at the workplace. Again under those circumstances I requested reasonable adjustment be made to facilitate that. I subsequently received a letter (ref 11) dated 7th of September 2020 claiming that I had no statutory entitlement to be represented.

2.18.                  On Tuesday 15th of August at 9.00am I attended a meeting at the respondent’s  Offices on my own. The respondent in their submission suggests I attended “under protest”. Given the global pandemic and government guidelines on both sides of the border, I was reluctant but I did attend; I stressed throughout this process that I was willing to have the issues resolved to ensure a swift return to work. Present were Mr.GK  and Mr.PB. During the meeting we discussed the issues outlined above, and as raised with the OHT. At times the meeting was heated, with Mr.PB  in particular getting aggressive at one stage when we discussed the operator grinding at the shutter door which he denied was the case on a full time basis. Mr.GK  sounded surprised when I mentioned respiratory trouble and asked was it in the OHT’s report. This lead me to believe that he either had not read the report, or was being evasive of what was in the report. Either way it was discussed with the OHT, and was in his report. At the meeting I was given a number of assurances. I advised the respondent of their responsibility of care they had to me in providing me with both a safe working environment as well as a competent workforce. I was assured that the respondent’s health and safety department would conduct an air quality test in my section so as to ensure that my health and well-being would not be effected as a result of bad working practices. This was to instil confidence in me to return. I requested that, in order for me to have confidence in the competency of management, the incident whereby an unprotected live cable was placed under a machine endangering my health and wellbeing be investigated, and subsequently recorded in the health and safety file as a near miss, if not a dangerous occurrence. I was given an assurance that an investigation would be carried out and the results given to me before my return to work.

2.19.                  When discussing at this meeting the lack of provision of PPE and RPE during my employment, Mr.GK a number of times repeated that over one thousand employees worked at the plant. Whatever was meant by that I still do not know but as the respondent has shown through their submission, records of my employment are held. The respondent suggested in their submission that I was issued with appropriate PPE (and RPE). The respondent will therefore hold original copies of both PPE and RPE being issued to myself, and signed by me as received on the date that they were received. The respondent will also hold original copies of all risk assessment and method statements for the aluminium section, and the original copies in particular that I have signed to state that I understand the risks associated with the various tasks that I undertook while working in the section, and the measures employed to avoid the risk. A prudent employer will hold all records pertaining to the employment of an employee under their duty of care.

2.20.                  I received a letter (ref 12/1, 12/2) dated the 28th of October 2020 from the respondent. I was instructed to return to work on Monday the 9th of November 2020. I wrote back to the respondent by email (ref 13/1, 13/2) on the 3rd of November noting that the respondent did not seem to be taking my concerns around health and safety seriously. Assurances were not present in the correspondence: no mention of an air quality test, no mention of an investigation into a near miss within the letter. I also requested a copy of all notes and minutes taken by both managers present at the meeting which I still have yet to receive. I stressed that I was willing to return to work, but not until the aforementioned issues were resolved as promised at the meeting. I informed the respondent that my GP had certified me on sick leave that covered me until the start of December 2020 (ref 14). I asked whether or not the respondent or the OHT could over rule my own GP? As the OHT mentions in his report, I was adversely affected by my perception of stress in the workplace. He explains that workplace issues were a barrier to a successful return to work, and concluded that he does not expect me to make a successful return to work until the workplace matters had been resolved. The OHT suggested that there was no reason why I could not provide regular and effective service in the future. At this stage, and with the process in the OHT’s report not fully met, it was my strong belief that the matters at hand had not been properly resolved, therefore I was justified in not returning to work at that date.

2.21.                  I received a letter (ref 15/1, 15/2) dated the 4th of November 2020 from the respondent. I was again instructed to return to work on Monday the 9th of November 2020. I was explicitly warned that if I failed to attend my contract would be terminated. This again is seen by myself as unreasonable behaviour by the respondent as I was on certified sick leave until the start of December 2020 (ref 14) and the issues outlined above appeared strongly in my mind to remain unresolved. In the respondent’s submission it is stated that I failed to correspond with the company that I would not be returning on the date instructed to by them. As outlined above (Ref 13/1, 13/2) I did I inform them that I had a current certified sickline until the start of December 2020 and would not agree to return before that, or at least before the assurances given were exhausted. I believe the respondent inserted this into their submission to mislead the adjudication process by not presenting all the facts.

2.22.                  I received a letter (Ref 16/1, 16/2) from the respondent dated the 11th of November 2020 dismissing me. As stated above I had continually asked for reasonable adjustments to be made to the way in which correspondence was made between myself and the respondent. I continually asked for modern forms of communication given the fact that I had previously missed correspondence posted by mail. I did not receive this communication until the 20th of November 2020, two days after the given five days for an appeal as it was not delivered to me until that date. I had felt at this stage that this was further unreasonable behaviour given the continual requests for reasonable adjustments due to issues outlined above. I felt that even in this one instance, that an email should have been sent given the seriousness of the content contained within, and the fact that a time limited appeal was present in the content. I then proceeded to contact Citizens Advice, who, after listening to my story, advised me to contact the Workplace Relations Commission which I did after some considerable thought.

3.                Documentation referenced in the submission was set out in this section and is          comprehended in the CAS file .

4.      Safe Place of Work

4.1.   The Safety, Health and Welfare at Work Act sets out the health and safety requirements of the workplace. Section 8 provides the general duty to ensure ‘so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.’ Section 8(2) provides particulars, including the duty at subsection (e) to provide ‘systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health’.

4.2.   Section 8(2)(i) refers to the general principles of prevention in Schedule 3 and provides that ‘where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees’.

4.3.   Schedule 3 of the Act sets out general principles of prevention, including ‘1. The avoidance of risk 2. The evaluation of unavoidable risks … 4. The adaption of work to the individual … 5. The adaption of the place of work to technical progress … 7. The giving of priority to collective measures over individual protective measures.’ These principles are engrained in how risks and hazards are addressed, for example the pyramid-structure hierarchy of control often quoted in health and safety documents. The most effective way to address a risk is to eliminate it, followed by substitution, then by engineering or administrative controls. Personal protective equipment is the last resort and the least effective measure.

4.4.   Section 13 imposes duties on the employee, including to comply with statutory provisions and to take reasonable care to protect their safety, as well as to cooperate with the employer. Section 19 requires the employer to prepare a written risk assessment of hazards, including of any unusual risks to a particular employee.

4.5.   The health and safety duties imposed on employer and employee are an implied term in every contract of employment. Through the contract of employment, employers and employees are bound to comply with the statutory regime and relevant health and safety policies.

4.6.   The Complainant contends that the Respondent failed to provide him with a safe place of work.

5.      Unfair Dismissals Act

5.1.   Overview

5.1.1.The Unfair Dismissals Acts 1977 to 2015 (the Acts) embed procedural fairness into the employment context. The reasonableness of an employer’s conduct and adherence to accepted or contractual procedures is essential to fairness.

5.1.2.The burden rests solely on the employer to act reasonably and comply with fair procedures, particularly in relation to grievances and disciplinary matters.

5.1.3.Apart from a case involving constructive dismissal, a dismissal is presumed to be unfair unless the employer can show substantial grounds to justify it.

5.2.   Dismissal is defined, for the purposes of the Acts, as:

5.2.1.Actual dismissal, i.e. termination by the employer of the employee’s contract of employment, with or without notice; or

5.2.2.Constructive dismissal, i.e. termination of the employment contract by the employee, with or without notice, where, because of the conduct of actions of the employer, an employee has no reasonable option but to resign; or

5.2.3.The expiry of a fixed-term contract, without its being renewed under the same contract; or

5.2.4.The expiry of a specified purpose contract, due to the cessation of the purpose.

5.3.   The Complainant contends that the Respondent failed to follow due process or fair procedure in their dismissal of him.

5.4.   The Acts give dismissed employees the right to bring a claim for unfair dismissal against their former employer, when the following is satisfied:

5.4.1.They gave at least 12 months’ continuous service with the employer (except where dismissal is for trade union membership/activity or in a group or category of employee to which a trade dispute relates, or for exercising rights under legislation governing maternity leave, adoptive leave, parental leave, carer’s leave, minimum wage, or protected disclosures);

5.4.2.They are over 16 years;

5.4.3.They have been dismissed by their employer (actually or constructively).

5.4.4.Begin a claim for unfair dismissal within six months from the date of dismissal.

5.5.   The Complainant satisfies these requirements.

6.      Referral of Complaint to the Workplace Relations Commission

6.1.   In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documents or other evidence which may be tendered in the course of the hearing.

6.2.   The evidential burden of truth rests with the Respondent.

6.3.   Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.

6.4.   Also, an Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).

7.      Burden of Proof

7.1.   The burden of proof is firmly on the Respondent.

7.2.   The general approach of the Tribunal and the WRC to cases for dismissal for conduct was set out in Hennessy – v – Read and Write Shop Ltd UD 192 /1978.

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to:

1. the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

2. the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

7.3.   This requires the decision maker to consider whether the complainant was made aware of all the allegations and complaints that formed the basis of the proposed dismissal, whether the complainant had adequate opportunity to deny the allegations or explain the circumstances before the decision to dismiss was taken, whether the respondent believed the complainant had conducted himself or herself as alleged, whether the respondent had reasonable grounds to sustain that belief and if so whether the penalty of dismissal was proportionate to the alleged misconduct.

7.4.   The Complainant contends that the Respondent had no reasonable grounds to dismiss him.

7.5.   In Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 Mr. Justice Flood said where a question of unfair dismissal was in issue, there were “certain premises which must be established to support the decision to terminate employment for misconduct”. These he listed as follows:

1. The complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

2. Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed and his or her version noted and furnished to a deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

7.6.   Flood J. added that “put very simply, principles of natural justice must be unequivocally applied”.

7.7.   It is not the function of the Adjudicator to establish the guilt or innocence of the employee. Rather, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against.

7.8.   The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

7.9.   The Complainant contends that the Respondent did not have just cause to dismiss him.

8.      Unfair Dismissal – Justifying the Dismissal

8.1.   The Unfair Dismissal Act 1977 provides that a dismissal is unfair unless there are substantial grounds justifying the dismissal.

8.2.   The Act does not provide a high degree of intrusion into the managerial decision making and the WRC and former EAT have consistently held that the question of whether the employer has demonstrated that there were substantial ground justifying the dismissal was to be answered by applying the objective standard of the way in which a reasonable employer, in those circumstances and in that line of business, would have behaved.

8.3.   As Mr. Justice Noonan stated in Bank of Ireland – v Reilly [2015] IEHC 241, the question is “whether the decision to dismiss is within the range of reasonable responses of a reasonable employer into the conduct concerned”.

8.4.   Section 6 (4) (b) of the Unfair Dismissal Act 1977 (as amended) refers to the conduct of the employee.

8.5.   Section 6 (6) states that it is a matter for the employer to show that the dismissal resulted wholly or mainly from one of the matters specified in subsection (4).

8.6.   Section 6 (7) sets out:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if [the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so—

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

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

9.      The Code of Practice on Grievance and Disciplinary Procedures

9.1.   The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.

9.2.   The Code of Practice emphasises that good practice entails a number of stages in the discipline and grievance process as follows:

9.2.1.That employee grievances are fairly examined and processed;

9.2.2.That details of any allegations or complaints are put to the employee concerned;

9.2.3.That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

9.2.4.That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and/or

9.2.5.That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

9.3.   The Complainant in this matter contends that his dismissal was not an appropriate sanction.

10.  Due Process and Fair Procedure

10.1.                  We refer to a recent decision of the Workplace Relations Commission which neatly summarises the expectations of due process and fair procedure in cases of unfair dismissal (ADJ-00017738: A Truck Driver v. A Distribution Company). The employer in this matter submitted that the employee was fairly dismissed and that his dismissal was reasonable and proportionate in the circumstances.  By his actions, in breaching company policies, the employer had lost its trust and confidence in the employee to fulfil his duties, they claimed. The employee submitted the following:

10.1.1.   That the reason for which he was dismissed from his position was unfair and disproportionate;

10.1.2.   That he was dismissed in breach of the principles of fair procedures and natural justice;

10.1.3.   That the employer failed to properly consider all matters; and/or

10.1.4.   That the employer failed to ensure a fair process in all of the circumstances.

10.2.                  The Complainant contends that his dismissal was unreasonable under the circumstances.

10.3.                  It was noted that S6(4)(a) of the Act states without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from the conduct of the employee.

10.4.                  In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

10.5.                  The Adjudication Officer must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

10.6.                  Regarding the procedural aspects of this case, it was clear an investigation took place into the allegations made against the employee, the outcome of which was a recommendation that formal proceedings under the Disciplinary Policy should be pursued. It is not the role of the Workplace relations Commission to re-investigate the allegations but to decide on whether the investigation was thorough and fair. In all cases of dismissal for conduct, an investigation by the employer is required.  The precise requirements of each investigation will be determined by the facts of the case, but the onus is on the employer to show that it was "fair" in the sense of being open-mined and “full” in the sense that no issue which might reasonably have a bearing on the decision was left unexplored. If an investigation fails to meet these requirements, the decision to dismiss is likely to be found unfair.

10.7.                  The Labour Court Recommendation UDD 198 which states inter alia:

“The Complainant’s case is that his dismissal was unfair as the decision to dismiss him does not meet the standard for fair procedure set out in the case law cited. The Employer disputes that the dismissal was unfair and argues that that there is no requirement for the process to be perfect. Any errors that may have occurred in the process were minor. The Court does not dispute the fact that the process does not have to be flawless however, in this case a number of issues have been highlighted which in the Court’s opinion go to the heart of the Employee’s ability to answer the charges being laid against him. In particular, the failure to provide him with all documentation being relied on by the decision makers at the various stages of the process and the failure to provide him with some of the allegations in advance of the investigation into same.

In Panasov v Pottle Pig Farm UDD1735 this Court concluded;

‘The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.’

The fact that the Employee in this case was not informed in advance of all the allegations against him and was not provided with all the documentation being relied on by the decision makers at the various stages of the process, deprived him of the opportunity to advance a defence. In reliance on the decision in Panasov v Pottle Farmit is the decision of the Court that in those circumstances the decision to dismiss was not within the range of reasonable responses. The Court therefore, cannot see how this dismissal could be deemed to be fair.”

10.8.                  The Complainant contends that dismissal was not an appropriate sanction for the concerns he raised on health and safety grounds.

11.  Objective Bias

11.1.                  The test for objective bias has been discussed at some length in a significant number of cases over the last decade. These include Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412, O’Callaghan and Ors v. McMahon and Ors (No. 2) [2007] IESC 17 and [2008] 2 I.R. 514, Goode Concrete v. CRH plc & Ors. [2015] IESC 70 and The Commissioner of An Garda Síochána and Ors v. Penfield Enterprises and Ors [2016] IECA 141.

11.2.                  The test to be applied when considering a claim of objective bias was summarised in the following fashion by Denham C.J. in Goode Concrete v. CRH plc & Ors. at p. 54 of her judgment. This is what she said:-

“The test to be applied when considering the issue of perceived bias is objective. It is whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. It is an objective test, it does not invoke the apprehension of a judge, or any party; it invokes the reasonable apprehension of a reasonable person, who is possessed of all of the relevant facts.”

What is clear from the test thus formulated is that each case will necessarily turn on its own particular facts and in respect of each case the reasonable person, by whose standard the apprehension of bias is to be tested, is to be taken to be in possession of all of the relevant facts.”

11.3.                  In O’Callaghan & Ors. v. McMahon & Ors. (No. 2) at para. 80 of his judgment Fennelly J. helpfully identified the principles which he considered relevant to the court’s consideration of a claim of objective bias. This is what he said:-

“80. The principles to be applied to the determination of this appeal are thus, well established:

objective bias is established, if a reasonable and fair-minded objective observer, who is not unduly sensitive,but who is in possession of all the relevant facts, reasonably apprehends that there is a risk that the decisionmaker will not be fair and impartial;

the apprehensions of the actual affected party are not relevant;

objective bias may not be inferred from legal or other errors made within the decision-making process; it is necessary to show the existence of something external to that process;

objective bias may be established by showing that the decision-maker has made statements which, if applied to the case at issue, would effectively decide it or show prejudice, hostility or dislike towards one party or his witnesses.”

11.4.                  The Complainant contends that the Respondent dismissed him in part, due to personality clashes and that there was an objective bias throughout the process. 

12.  Procedural Deficiencies

12.1.                  The decision to dismiss an employee must be made in a way that is procedurally fair. The right to fair procedures derives from the Constitution and the European Convention on Human Rights, and has been elaborated on by the courts through case law.

12.2.                  Fair procedures must be applied from the outset of the decision-making process leading to the dismissal, and a failure to do so may result in the decision being set aside by the courts.

12.3.                  What a procedure requires to be classified as fair can vary from case to case. For example, fair procedures must be very strictly applied where the decision threatens the good name of an individual, or their right to earn a livelihood.

12.4.                  In general, those making the decision to dismiss an employee must not be biased and must not take part in more than one stage of the decision-making process; notify the person affected by the decision of any allegations against them and give them the opportunity to be heard; allow him/her to call witnesses, make representations and cross-examine the other party (in cases where there is an oral hearing); consider allowing him/her to have legal representation; and give reasons for their decision and keep a written record of these reasons.

12.5.                  Fair procedures must be applied at every stage of the dismissal process, for example when conducting disciplinary hearings; carrying out investigations; writing reports; making determinations or decisions; and reaching conclusions.

12.6.                  The Complainant contends that the process leading to his dismissal was procedurally unfair.

12.7.                  The dismissal process must be free from bias or the appearance of bias and the decision-maker must be seen to act in a fair and impartial manner – a perception of bias may be sufficient to amount to a breach of fair procedures. A perception of bias arises where a reasonable person believes, on the basis of the facts presented, that the decision-maker may have been biased.

12.8.                  Decision-makers should not have previously been involved in the matter on which they are deciding. For example, a member of staff who made a complaint about an employee should not be involved in any disciplinary proceedings in relation to that employee. Similarly, an appeal of a decision should not be heard by any of the people who made the initial decision.

12.9.                  The Complainant contends that the decision to dismiss him was not balanced against the legitimate health and safety concerns he had raised.

13.  Due Process and fair Procedure Case Law

13.1.                  The starting point for any consideration of the right to fair procedures is the Supreme Court decision in Re Haughey [1971] I.R. 217. The Supreme Court interpreted Article 40.3 of the Constitution as encompassing a guarantee of fair procedures for all citizens such that in any proceedings during which a person’s conduct is impugned, that person must be afforded a reasonable means of defending himself or herself. 

13.2.                  These reasonable means include guarantees that the person who is the subject of the allegation is:-

13.2.1.   furnished with a copy of the evidence against that person

13.2.2.   allowed to cross-examine the accuser or accusers

13.2.3.   allowed to give rebutting evidence; and

13.2.4.   permitted to address the body concerned in that person’s own defence.

13.3.                  In Flanagan v. University College Dublin [1988] 1 I.R. 724 the High Court considered the manner in which UCD had investigated a charge of plagiarism. The High Court held that the applicant should have received in writing details of the precise charge being made and the basic facts alleged to constitute the offence. She should have been allowed to be represented by someone of her choice and she should have been informed in sufficient time to enable her to prepare her defence. Barron J. was of the view that at the hearing itself she should have been able to hear the evidence against her, to challenge that evidence in cross-examination and to present her own evidence. The High Court held that she was not made aware of the exact nature of the charge against her or given an adequate opportunity to prepare her case or to present it.

13.4.                  In Gallagher v. The Revenue Commissioners [1995] 1 I.R. 55 a Customs and Excise Officer was being investigated for the manner in which he conducted his duties. He was accused, inter alia, of having deliberately undervalued a vehicle. He attended an oral hearing and stated that he wished to cross-examine the parties who had carried out the valuations but was informed that it was not intended to call those valuers. He withdrew from the oral hearing. The report of the oral hearing was subsequently produced and Mr. Gallagher was dismissed. Morris J. in the High Court concluded that the applicant had been deprived of the opportunity of confronting the witnesses whose findings formed the basis for the allegation that he was guilty of undervaluing. The High Court was particularly influenced by the serious nature of the allegations and the potential impact upon the applicant if they were substantiated.

13.5.                  On appeal, the Supreme Court upheld the right of the applicant to be afforded the opportunity of hearing and cross-examining witnesses. Having regard to the seriousness of the charge and the consequences for the applicant the decision to dismiss was therefore taken contrary to the requirements of natural justice and fair procedures and was quashed.

13.6.                  The Complainant contends that his dismissal stems from his genuine health and safety concerns, which had not been factored by the decision maker.  

14.  Severity of the sanction imposed

14.1.                  SI 146/2000; Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 contains a code of practice prepared by the Labour Relations Commission and submitted to the Minister for Enterprise, Trade and Employment who made an order declaring it to be a Code of Practice for the purposes of Section 42 of the Industrial Relations Act 1990.

14.2.                  The purpose of the code of practice is to provide guidance to employers, employees and their representatives on the general principles which apply in the operation of grievance and disciplinary procedures. The code provides that disciplinary action may include:-

14.2.1.   oral warning

14.2.2.   written warning

14.2.3.   final written warning

14.2.4.   suspension without pay

14.2.5.   transfer to another task or section of the enterprise

14.2.6.   demotion

14.2.7.   some other appropriate disciplinary action short of dismissal

14.2.8.   dismissal.

14.3.                  The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445:

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

“The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

14.4.                  The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at  length.

14.5.                  Considering the Penalty of Dismissal imposed when seen against the charges made against him I had to have regard to the principles of “reasonableness”. It is not for the Adjudicator to revisit the Penalty but rather to see if it falls within the “band of reasonableness.”

14.6.                  This was first set out in the headline case British Leyland UK Ltd v Swift [1981] IRLR 91. This case has been followed closely in subsequent case law. In essence it made the point that if a Dismissal decision is “Reasonable” and one which an employer in a similar situation might take then it is deemed to be fair provided of course that all requirements of Natural Justice have been observed.

14.7.                  In Allied Irish Banks plc v Purcell [2012] ELR 189 Judge Linnane stated 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 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.”

14.8.                  Guidelines as to what is “Reasonable” is considered in Hennessy v Read & Write Shop Ltd UD 192/1978 where it is stated

“in deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to

1: The nature and extent of the enquiry carried out by the Respondent prior to the decision to dismiss the claimant, and

2: The conclusion arrived at by the Respondent that, on the basis of the information resulting from such an enquiry, the claimant should be dismissed.

The Complainant contends that his dismissal was unreasonable under the circumstances and that a less severe sanction was not considered.

15.  Redress

15.1.                  Reinstatement or re-engagement of the Complainant is not a practical option in this case.

15.2.                  Instead, the Complainant takes the view that compensation is the appropriate redress in this case.

15.3.                  Section 7(2) of the Acts provides: -

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

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid….”.

15.4.                  Section 7(3) of the Act provides that future loss may be taken into account as follows: “financial loss, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 1973, or in relation to Superannuation”.

15.5.                   The Complainant contends that compensation is an appropriate redress.

 Summary of Pertinent Evidence of Claimant:

The claimant set out his   qualifications since his apprenticeship as a fabricator welder  and employment history in ventilation engineering ,  metal fabrication engineering, supervision , foreman  and a manager. He had been working in Dublin and applied for the job when he learned the company were recruiting. He was appointed as a machine operator and his tasks included  processing extrusions and removing paint from the extrusions and materials used for end products.

His various concerns regarding health & safety were set out in detail in his personal statement  which was furnished to the WRC as part of his submission ranging from the provision of PPE , the delay in providing safety boots , the provision of RPE and the efficacy of the plant ventilation systems. He took issue with the plant policy of not being provided with boots until he was employed for a year. He was aggrieved with not been given instruction on abrasive wheel usage and complained about dust being blown back into his work area and giving him asthma symptoms. He was aggrieved at the absence as he saw it of identifying risks  and hazards .He asserted that the dust mask he was furnished with was inadequate .He said on one occasion the dust had set off the fire alarm – he had used an airline to blow dust off his clothing .When he asked for a hoover he was given a floor brush to brush down his clothes.He asserted that this was inadequate and polluted the environment and that Mr.B was aware  it.

The claimant said he was prescribed a nasal spray , medication and an inhaler .The claimant asserted that the company was aware of this and he informed his line  manager Mr.JMc of this at a back to work interview. He said his certified  sick leave record  should not have impacted on his reviews. The claimant detailed further incidents involving dust pollution and described his efforts to clean the under compartment of a  machine , emptying the drawer  and transferring swarf for disposal into cardboard boxes The claimant referred to the danger of electrocution from an unprotected cable that travelled across the floor – which when adjusted caused a trip hazard .The claimant went off sick on Wed. Feb.5th2020 and was placed on certified sick leave by his GP. He was referred for an Occupational Health assessment by telephone  with Dr.P on the 10th.August – he stated he attended and  informed the doctor of his health & safety concerns. Dr.P’s report was submitted into evidence. The claimant said that during this period of sick leave , he became worried and anxious about going to work , that he could die in an accident and referred to the previous reference to electrocution. He and his partner were expecting a child and he worried about performing as a  father .He was concerned about his health , the bad work practises and raised these concerns wth Dr.P regarding the lack of due diligence and the lack   of  a proper  assessment – according to the claimant he had raised these matters previously with Mr.GK & Mr.B.The claimant said when he looked on line to review the health & safety practises he could see  that working conditions had not changed .The claimant said the company deemed him fit for work and he was ordered back to work by letter on the 26th.Aug. 2020.

The letter referred to his failure to attend a meeting on Monday 24th.August 2020.The claimant said that he received no notification of this meeting by post or email/ and denied he failed to attend the meeting.The claimant asserted that he notified the company that he was residing with his partner at this time  and had asked to be contacted by email.

The claimant said he was asked to attend a meeting on the 1st.Sept. 2020 and he advised that he was unable to attend owing to Covid 19 restrictions on both sides of the border .He suggested the meeting proceed by way of a video call.The claimant submitted that the respondent was excluding the timeline of events .The claimant said he felt he could be arrested if he crossed the border at the time. The claimant said he did not refuse to attend – he had asked for alternative means. He told the company he  had a week old baby at home and felt he was within his rights to request a video call.  MrG.K said that all correspondence would be by mail .The claimant  was asked by Ms.SL if he had checked his post at home , he explained that he was not living at home and was living with his partner at this time. He asserted that a video conference  could have been arranged. The claimant put it to the company that a reasonable adjustment should be made to ensure no further communication was missed. He asserted that this was his right as an employee and said he wished to be accompanied at the next meeting on the 15th.September  with a union representative. The claimant said he felt anxious  about crossing the border and thought a video could have been facilitated. The company advised the claimant that he had no statutory entitlement to be represented by a union representative at the meeting.The claimant said he attended the meeting on his own and no minutes of the meeting were kept.

The claimant said he revisited his health and safety concerns at the meeting  but his allegations were denied by MrG.K & Mr.B . The witness said that Mr.GK asked  if the claimant was going to educate him on Health & Safety legislation. The claimant said that he was assured at the meeting that an air quality test would be carried out. The claimant said he asked the respondents if they would accompany him on a walk around the factory .The respondent’s representative asserted that this had never been put to the respondent’s witnesses and that the matter of health & safety compliance was not a matter for adjudication.

On the 28th.Oct. the claimant was told by letter to recommence duties on Monday the 9th.November. and was advised that failure to resume work may result in the company considering termination of employment. The claimant confirmed he did not attend and that he was fully aware of the consequences of not returning - he said he was still certified on sick leave  and that was why he did not return. The  claimant confirmed that he reviewed the letter of the 28th.Oct. 2020 – he said he had furnished all of his sick certificates to the respondent. The claimant asserted that at the meeting  Mr.GK and Mr.B denied that there had been any near misses .He asserted that Mr.B had accepted  that there had  been unsafe temporary  measures put in place  without proper ventilation controls.

The claimant asserted he was never given any grounds or justification for his dismissal. None of his concerns had been addressed and he said this was evident from social media.- no one was wearing PPE and risks had not been properly assessed. No alternative sanctions had been proposed such as suspensions or warnings.

The claimant said when questioned about not appealing the  dismissal that Mr.DMcC was not involved. He said he did not appeal because he did not get the letter advising of the right of appeal until a number of weeks after it was issued – he was not at home due  to Covid. The claimant said he was never furnished with an absence policy and he was on certified sick leave. The claimant was asked if he was referred to disciplinary procedures relating to absence and he replied No. No informal discussions had taken place. No warning had issued and no proper investigation had been conducted .The claimant said he was one of the better workers in the employment. The claimant was never informed of what policy the employer was applying. The claimant said he did not receive the letter of termination until the 20th.Nov. 2020 – which was after the appeal time limit of 5 working days.

The claimant gave evidence of mitigation of loss – the claimant said he was in receipt of illness benefit up until Feb 2021 – he said he was actively seeking work from February 2021 and took up employment on the 19th.April 2021 on the same wages

The claimant said he had been looking for work elsewhere because the workplace was unsafe and because of his health concerns.

Under cross examination the claimant confirmed that he did receive his contract  of employment and the company handbook and that he had read them. He was referred to page 52 of the handbook which referenced grievance and disciplinary policies.  He agreed he understood the policy and procedures. The claimant did not recall raising the matter of  wages or tool selection with Mr.B – the claimant recalled a discussion about an ideal tool but had no recollection of raising the matter of wages .

It was put to the claimant that neither Mr.B nor Mr.GK  had said that  were  never approached by the claimant about health & safety and he was asked if he was so concerned why he did not raise his concerns with Mr.B -  he replied he raised the concerns with his Team Leader support and the floor manager. He said they did not resolve the issues .He went on to say that  he had shared  these concerns with Dr.P but  there was no improvement. When asked why he did not raise a grievance , the claimant replied his anxieties were heightened and his GP had placed him on sick leave.The claimant sad he raised the matter of the abrasive wheel , dust and the vacuum cleaner with TL support and Mr.LC – he could not recall the time line. The witness said he did not use the grievance procedure as he had already raised the matters . The claimant said he was unaware of when the minutes of the Heath & Safety meetings would be posted/pubilshed.It was put to the witness that Mr.B and Ms.G K had confirmed a safe working environment with appropriate risk assessments – the claimant said he raised matters continuously through TL support and K D. The claimant asserted  that Mr.B had agreed that a  worker had to be employed full time to manually clear machines . The witness asserted that the risk assessments were inadequate and failed to identify the  dust creation agents – the witness said the risk assessment doesn’t say dust. The claimant was asked if he accepted Ms.GK was a qualified professional and that the Health & Safety Authority accepted that masks can be used as PPE. The claimant said  when he returned to work and told Mr.JMcC that he was having breathing difficulties he made him aware of his difficulties and the remedies that had been prescribed by his doctor.

The claimant asserted when asked about making a complaint to the Heath & Safety Authority that there was  no evidence that the Authority came on site to carry out an inspection. It was put to the claimant that Ms.GK had given evidence of responding to Health & Safety concerns  having received contact from the Health & Safety Authority. The claimant accepted that the Health & Safety Authority had responded but insisted that there was no evidence that an inspection took place.It was put to the claimant that Ms.K gave evidence that the Health & Safety Authority had come on site .It was also submitted that while  Dr.P had referenced significant employment issues in his report to the respondent , he had found that there was no medical reason why the claimant could not provide a proper service.The claimant said he would not return as his GP had certified him as unfit. The claimant said he disagreed with Dr.P’s report. He asserted that there was no reason why the company could not have facilitated zoom meetings.

The claimant accepted that he was on notice of the company’s intentions if he did not return to work.It was put to the claimant that it was not possible to hold his job open indefinitely – the claimant replied that Dr.P did not say he was medically fit to return to work.

The claimant was asked why he did not change his address when Mr.K said they would continue communicating by post – the claimant replied that there was confusion – he asked for email communication as  post was disrupted because of COVID.The claimant responded that he was not at home and the company had disregarded his views.

It was put to the claimant that he was still an employee on Nov. 20th. The claimant replied that he took it that the notice period had expired. It was put to the claimant that it was unreasonable of him not to appeal his dismissal – the claimant rejected that and said he had high anxiety and stress and if the company had acceded to his request for email communication , this would never have happened. The claimant asserted that his illness was based in the workplace .When it was put to the claimant that Dr.P said it wasn’t a medical issue the claimant asserted that his emotional health was adversely affected by workplace stress.The claimant said it had been very difficult to contact companies about work following his dismissal – because of COVID.He had made 3 applications for work – he confirmed he was in receipt of illness benefit up until 2nd.February 2021 and he obtained employment at the same rate of pay in 18th.April 2021.

In summing up the claimant’s representative emphasised that this complaint was submitted under the unfair Dismissals Acts – while much of the hearings heard conflicts of evidence regarding whether the respondent provided a safe place of work – this was not a complaint under the Health Safety  and Welfare  at Work Act , the Employment Equality Act and was not a case of constructive dismissal – what had to be decided upon was whether the decision to dismiss was reasonable. The complaint was about the decision of the Company to dismiss the complainant .It was advanced that a unique set of circumstances precluded the application/implementation of the provisions of the Company Handbook. The procedure provided for due process and fair procedures and included an absence policy that  precisely provided for dealing of cases such as the instant case. It provided for disciplinary measures , interviews with the claimant and an opportunity to respond.IT was submitted that it had been accepted that this did not happen. The process of inviting the individual to a meeting , consideration of mitigating circumstances and application of appropriate sanctions – did not occur.It was submitted that while the adjudicator can assess the failure of the employee to invoke the appeal procedure – the question to be determined was what would a reasonable employer have done – it was submitted that it was not reasonable for the respondent to reject the claimant’s request to correspond with him via email  and to reject his request for a remote hearing. It was submitted that a reasonable employer would have processed the matter under the absence and disciplinary policy and considered suspension pending an investigation. It was submitted that a reasonable employer would have considered an alternative to dismissal but this was not done.I t was submitted that the company should have awaited the expiry of the claimant’s sick cert but did not. It was submitted that the respondent should have taken into  account that the claimant was on certified sick leave for depression. It was submitted that the claimant had set out his losses and his attempts to seek employment elsewhere and this should not be held against him. It was submitted that the claimant was looking for alternative employment during Covid  when there was very little opportunity for work outside of large urban centres  like Dublin. It was submitted that the outcome should set out what was just and reasonable given all of the circumstances.

In  a post hearing submission , the claimant submitted that the following items  supported the assertions he had made about safety measures in the plant :

 References Requested by the Adjudicating Officer with Screen Grabs and Time Stamps for Reference

Author: The Complainant

Contents

1. Nuisance Mask ................................................................................................................................................................................................ 2

2. Welding Fumes ................................................................................................................................................................................................ 3

3. Welding Helmet ................................................................................................................................................................................................ 4

4. Makeshift Cable ..............................................................................................................................................................................................

6.Former Chairman and owner ..................................................................

. 7 . Culture of PPE NN COMPLIANCE ...............................................................................................................................................8

References

https://www.youtube.com/watch?v=qSBHGYLkmTg (Posted 22/07/2020)

https://www.youtube.com/watch?v=zDCS6ZKj408 (Posted 14/10/2020)

https://www.facebook.com/share/v/6koqvozXrZQbao1g/ (Posted 02/11/2021

I have reviewed the evidence presented at the hearings and considered the submissions, the evidence and the authorities relied upon by the parties. The claimant asserts that his dismissal was unfair while the respondent contends that owing to the prolonged absence from work that  the  company had no alternative but to terminate his employment.

Both representatives submitted that the safety and health issues which were the subject of numerous submissions and considerable debate during the hearings,   were not a matter for adjudication. While I acknowledge that the parties had polarised positions with respect to the health & safety standards and practises within  the employment ,  the complaint was not referred under the Safety , Health & Welfare at Work Act, 2005  and consequently  my  jurisdiction is limited to the provisions of the Unfair Dismissals Acts  and to  determining if the dismissal of the claimant was fair, in all the circumstances.

The focus of my consideration was the reasonableness of the employer as set out in Section 6(3) of the Unfair Dismissals Act 1977 as amended by Section 5(6) of the Unfair Dismissal’s Act 1993 – which provides ….” In determining if a dismissal is an unfair dismissal, regard may be had , if the Rights Commissioner , the Tribunal or the Circuit Court , as the case may be , considers it appropriate to do so – to the reasonableness or otherwise of the conduct (whether by act or omission )of the employer in relation to the dismissal….”

It is not disputed  that the claimant had a good performance record with the respondent and met the required standards to pass his probation. The company’s own records confirm that the claimant disclosed that he suffered from asthma and set out the medication regime for same at his return to work interview on the 24th.April 2019. I acknowledge the companies references to efforts to reassure the claimant about his health and safety concerns in their engagement with the claimant  in the months prior to his dismissal in 2020.  I don’t accept that the claimant’s repeated  request for  zoom/ remote meetings rather than a face to face meeting were unreasonable in circumstances where the claimant’s partner was expecting a baby  and the claimant had been  certified by his doctor  as suffering from a respiratory ailment -  bronchospasm . Additionally , I find it difficult to comprehend why the parties could not reach agreement on the matter of communication by email during the pandemic. The company appears to have been unreasonably  fixed on their position on the matter while the claimant could not explain why he could not have  formally sought an amendment to his address details to facilitate postage to the home of his partner.

Throughout the hearings and in the submissions to the WRC ,the company has asserted that the claimant’s prolonged absence was not a disciplinary matter   .The indications were that the company did not want to escalate the matter to disciplinary status. However , in adopting this approach , the claimant was denied his rights under natural justice ; he was denied his rights to an objective investigation ; he was denied the protections afforded to employees under the company’s  disciplinary policy ; he was denied rights to representation. I accept the contentions of the claimant’s representative that the respondent’s  procedures provided for due process and fair procedures and” included an absence policy that  precisely provided for dealing of cases such as the instant case. It provided for disciplinary measures , interviews with the claimant and an opportunity to respond.It submitted that it had been accepted that this did not happen -  The process of inviting the individual to a meeting , consideration of mitigating circumstances and application of appropriate sanctions – did not occur”. I note the respondent has challenged the claimant’s  non attendance at some meetings  and has argued that the claimant had an opportunity to process a grievance regarding his health and safety concerns through the company procedures but failed to do so. I find the respondent failed to take into account  the claimant’s  expressed anxieties and  failed to take on board the certification by the claimant’s   GP of depression – which may well have impacted on his capacity to 1) participate in meetings and  2)escalate his  grievances through the company procedures .Additionally , I did not find the respondent’s assertions of having considered alternative sanctions to dismissal to be convincing.

 For all of the  reasons set out in the foregoing paragraph  ,  and having regard to the company’s  failure to comply with their own procedures -  I find that the dismissal was substantively and procedurally unfair – I believe this finding is consistent with the principles set out by the EAT in Gearon v Dunnes Stores Ltd. UD 367/88 –  where the Tribunal determined as follows:

“The right to defend herself and have her arguments and submissions listened to and evaluated by the respondent in relation to a threat to her employment is a right of the claimant and is not in the gift of the respondent or this tribunal ….as the right is a fundamental one under natural and constitutional justice , it is not open to this Tribunal to forgive its breach”.

I note that the claimant has quantified his loss of 63 weeks in his submissions. I acknowledge that in a post hearing submission the claimant asserted that he commenced work with his current employer   on the 21st.May 2021 on the same rate of pay. Despite the fact that the claimant  was served with notice of particulars by the respondent’s representative on the 21st.July 2021 – seeking documentary evidence of his efforts to mitigate his loss – no documentary evidence of same  was submitted at the final hearing. In his own evidence at the final hearing the claimant confirmed that he was in receipt of illness benefit from the 5th.February 2020  until the 2nd.Feb. 2021  and submitted that he took up employment with his current employer on the 19th.April  2021 on an equivalent rate of pay. Consequently the claimant was unavailable for work  from Feb.20-Feb. 2021 . In accordance with the provisions of Section 7 of the Act I am limited to awarding the claimant  compensation for the 10 week period from the 3rd.February 2021 – 19th.April 2021  at which point he  had  secured alternative employment at the same level of pay.

I uphold the complaint of unfair dismissal and require the respondent to pay the claimant €3,930.1 compensation