Complainant

Respondent

Parties

Daniel  Murtagh

 DMC Foods Limited

Representatives

Paul McCormack McCormack Co Solicitors

Hugh Hegarty Managment Support Services

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-00055785-001

24/03/2023

The Complainant was employed as a Warehouse Operative from 11th June 2021 until 25th November 2022.

The Complainant was initially employed to manage a Warehouse. He was then transferred to work on the yard.

The Complainant received an email from Mr. Murphy alleging he was coercing staff and giving false information about pay rates. There was no evidence, and no witness came forward. On 10th August 2022, the Complainant received a written warning for breach of professional conduct policies. When he asked Noel Murphy what this meant he was told it was talking about pay. The Complainant says he is allowed to discuss his pay, and he did nothing wrong. He did not want any more trouble, so he did not appeal the written warning.

On 7th September 2022, the business received a closure notice from the Food Safety Authority as the warehouse was not being managed properly. The Complainant says management believe he reported the problems after he left the warehouse.

On 3rd October 2022, the Complainant was suspended. The Complainant was dismissed for operating a forklift while using a mobile phone. He has statements from two other witnesses confirming this was common practice among staff. One of the staff also refers to others including a manager using his phone. He was dismissed on 25th November 2022. His appeal was not upheld. The Complainant says he was unfairly singled out and dismissed for using the phone.

The Respondent says at the time of dismissal the claimant was on a final written warning that was not appealed. The sanction imposed was procedurally fair and substantially warranted.

The company is a consumer foods business and ready meal manufacturer based in Co. Monaghan.

On 10th August 2022, the Complainant was issued with a written warning for breaches of the Professional Conduct Policy. He was given a right of appeal within seven days of the letter. The Complainant did not appeal and accepted the warning.

Around 30th September 2022, the Complainant was witnessed operating a forklift while on his mobile phone. A complaint was sent to the Production Manager and an investigation commenced. The Complainant was suspended. The Complainant admitted to operating a forklift while on the phone and this was a dangerous practice. An external party conducted the investigation, and a report issued on 7th November 2023.

The Complainant was invited to a disciplinary hearing on 24th November 2022. The Managing Director Mr. Grimes found he behaved in a manner that breached health and safety, and having considered the warning for misconduct, and the seriousness of the offence that the incident warranted dismissal.

The Complainant was aware that it was prohibited to be on a phone while operating a Forklift truck. He was not apologetic but attempted to justify his actions. He stated that there was no excuse and he normally does not have a phone on him.

The Respondent relies on S6 (4) of the Unfair Dismissals Act 1977 that a dismissal shall not deemed to be unfair if it results wholly or mainly from the conduct of the employee. The dismissal of the Complainant was procedurally fair and in compliance with SI 146/2000 Code of Practice on Grievance and Disciplinary Procedures. The sanction was proportionate and the Complainant was given the opportunity to be represented.

I have considered the submissions and oral evidence of the parties carefully.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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 more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides 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 as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (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 S14 (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.

Mr. Murtagh claims he was unfairly dismissed following an incident on 30th September 2022          when he was captured on CCTV operating a forklift while on his mobile phone. At the time of the incident, he had already received a written warning for breaches of the Professional Conduct Policy.

Mr. Murtagh is a qualified forklift operator. He admitted in evidence operating a forklift while on his mobile phone is a dangerous practice. However, he had to take a call that day from a mechanic. He says he wasn’t driving at speed and other staff were using their mobile phones. He was the only person fired.

Gerard McDonnell gave evidence that he worked in the company for eighteen months. He is a forklift driver and used his mobile phone for work-related calls every day. He left the company, as he heard he was going to receive a letter regarding an investigation into his mobile phone use. Another employee Wayne Lynch admitted during the investigation that he used his mobile phone at work while the forklift was stationary.

Mr. Murtagh’s representative submits that the sanction of dismissal was disproportionate. Mr. Murtagh says it was common practice that forklift drivers used their mobile phones for work-related calls and so were managers. He says the warning received related to discussing his pay which is unfair.

The Health & Safety Authority guidance to employers states mobile phones and hand held devices should never be used while operating a forklift. A quarter of workplace accidents relate to use of forklift trucks. Mr. Murtagh’s use of a mobile phone while operating a forklift truck was extremely dangerous.

The appropriate test to be applied is set out by the Court of Appeal in British Leyland UK Ltd v Swift [1981] IRLR 91 by Lord Denning MR at pg. 93 applied by Judge Linnane in Allied Irish Banks v Purcell [201] ELR 189:

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

I find the dismissal of Mr. Murtagh was fair and the sanction was not disproportionate in the circumstances.

The dismissal was fair.

Proportionality, health and safety, practice in company