EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Jan Olejarxzyk UD524/2012
Keltech Engineering (Waterford) Limited T/A Kel-Tech Engineering
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Browne
Mr J. Flavin
heard this claim at Waterford on 2nd August 2013, 20th and 21st November 2013 and 13th February 2014.
Ms Ger Malone, SIPTU, Liberty Hall, Eden Quay, Dublin 1
Kenny Stephenson Chapman, Solicitors, Park House, Park Road, Waterford
The respondent is a light engineering firm and the claimants were all employed in the same section of the respondent’s plant.
On the 26th August 2011 the Plant Manager heard two loud bangs coming from the factory floor. He tried to establish were the noise came from but was unable to do so on the day. An investigation into the matter ensued and the respondent engaged the services of a forensic engineer.
Some weeks after the event this Forensic Engineer carried out an analysis of what had caused the two loud bangs and came to the conclusion that they were caused by compressed air being used to burst plastic bottles in the area in which the claimants were working with one other person on the day in question. The forensic engineer told the Tribunal that this sort of horse play was extremely dangerous and that he was satisfied that the claimants knew who was responsible and were withholding this information. He did not speak with any of the claimants in the course of his investigations but did have sight of statements taken during the respondent’s investigation.
Case adjourned to 20th & 21st November 2013
At the resumed hearing of 20th November 2013 one witness was called to give evidence on behalf of the respondent. This witness told the Tribunal that he was the only person using the compressed air gun on the day the loud bangs were heard and that nobody else had the gun on that day. He also told the Tribunal that he did not know where the loud bangs came from.
Following this the parties requested a recess in order to allow them discuss matters. A recess was granted and the claimant’s representative subsequently informed the Tribunal that the matter had been compromised and they withdrew the claim with liberty to re-enter on or before 18th December 2013. However the claim was subsequently re-entered by the claimant and was set down for hearing on 13th February 2014.
On 13th February 2014 there was no appearance by or on behalf of the respondent and the Tribunal is satisfied that the respondent was properly notified of the hearing.
The claimant told the Tribunal that he did not cause the load bangs on 26th August 2011 and that he did not withhold any information from the respondent in respect of these incidents. He is unemployed since his dismissal despite constant efforts to gain alternative employment.
This matter came before the Tribunal on three separate dates. On the second day of the Hearing the Claimant, with the consent of the Respondent, withdrew the Claim from the Tribunal with liberty to re-enter.
The Claimant re-entered the Claim within the time allowed for him to do so and the matter was listed for the 13th February 2014. There was no attendance on the date by the Respondent.
The Tribunal having satisfied itself that both the Respondent and its Legal Advisors were on Notice of the hearing proceeded to hear the Claimant’s evidence.
The Claimant gave direct evidence to the effect that he had no involvement in the incident that led to the investigation by the Respondent, that he did not conceal or withhold information from the Respondent and was not un-cooperative.
The Claimant gave evidence of his efforts to secure alternative employment and to improve his chances of re-employment and proffered documentary evidence in support. However he has been unable to secure any employment since his dismissal by the respondent.
The Tribunal was satisfied with the evidence of loss and that the Claimant had made every effort to mitigate his losses.
The Tribunal received all documentation submitted to it and considered the evidence given by witnesses for the Respondent.
The Claimant was summarily dismissed. The onus was on the Respondent to satisfy the Tribunal that the dismissal was fair. The Tribunal is of the view that, in this instance, this onus was not met.
The grounds of Dismissal as stated in the Letter of Dismissal of the 2nd December 2011 were that the Claimant’s misconduct consisted of the “misuse of compressed air”. The Claimant was entitled to know the reason for his dismissal.
The Respondent arrived at this conclusion following an investigation which the Tribunal believes was conducted against a background of pre-judgement. The Tribunal is not satisfied that the investigation was impartial and objective.
Quite early in the process on 14/9/11 we have evidence of an e-mail from DW to the Health & Safety Officer enquiring as to “what actions and discussions you had in particular with Piotr and members of the Tank Cell”. This memo refers to an “explosion”. It is clear to the Tribunal that before a full investigation was undertaken and finalised Management has concluded that the causative factor was an explosion in the Tank Cell area
This memo pre-dates the appointment of L Mc G to undertake an investigation on the 29/9/2011 and the briefing of MOR Engineer by DW on the 30/9/2011. In the absence of sight of written Terms of Reference for either L Mc G or MOR the Tribunal has to have concerns that DW’s opinion that there had been an “ explosion” with his clear focus already on the Tank Cell Area was likely to colour his briefing of both L Mc G and MOR and the direction of the Investigation.
The Investigation Report as completed by L Mc G contains a number of clearly inaccurate statements and is replete with impressions and interpretations that are not supported by the Minutes of Interviews produced to the Tribunal. The Tribunal has reservation as to whether L McG approached her task objectively and impartially
The Investigation attributed guilt to the Claimant because he could not explain the source of the bangs. This is inexplicable against the backdrop of a situation where no-one else in the Respondent Company could explain the source either. She further seemed to conclude ,unfairly that, because the Claimant could not dispute the Engineer’s findings such as they were, that he was, as a corollary, accepting these findings as correct. No reasonable Investigation could arrive at this conclusion.
The Tribunal did not have the benefit of the oral evidence of Ms Mc G .The Tribunal was perplexed by the fact that, having conducted the Investigation, Ms Mc G then proceeded to conduct the Disciplinary Meetings. There should have been a clear division of roles as between the individual tasked to investigate and the one appointed to conduct the Disciplinary Process. While Mr W Solicitor also attended the Disciplinary Meeting it was made clear to all concerned that his was a supportive role only.
Indeed, the earlier meetings with the Claimant are stated in Ms Mc G’s Report of the 2/12/2011 to be part of the investigation process yet the minutes indicate that they are Disciplinary Meetings. Confusion of this nature can often occur in the absence of a clear distinction between the Investigative Progress and Disciplinary Process
From the evidence of BA before the Tribunal it was apparent that sufficient care was not taken in the interviewing of this witness during the investigation. A position was attributed to him that had a fundamental influence on the ultimate conclusions arrived at leading to the Claimant’s dismissal. In relation to the interviewing of BA during the course of the investigation, the Tribunal is of the view that adequate care was not taken to ensure that the witness was not guided by leading questions and, that significantly, obvious questions that might have been put to BA were not.
Before the Tribunal BA was very clear in his evidence that he was the only person in the Tank Cell Area who was using compressed air on the day.
(The Claimant was dismissed for misuse of Compressed air).
BA further gave evidence that others in the Tank Cell Area did not have access at the time of the event to the compressed air and that he had no knowledge of anyone using or misusing compressed air. He was clear in his evidence that he had no knowledge of the cause of the incident.
Indeed, a simple review of the Questionnaires completed by Employees at the request of the Company show BA to confirm in writing at an early stage that he was the only person in the Tank Cell Area testing the tank seals which requires the use of the compressed air facility.
The Tribunal is of the view that the information provided by BA before the Tribunal should have been secured by competent interviewing of BA during the investigative process.
The Tribunal is surprised that the Respondent Company’s Health & Safety Officer was not involved in briefing the investigating Engineer, was not given a copy of the Engineer’s Report and was not invited to comment on the Report.
The Tribunal feels that, in circumstances where the future Employment of an Employee is in jeopardy, an investigation needs to be thorough. Inexplicably, the Investigating Engineer ignored best evidence in failing to speak to any employee or the Health & Safety Officer but instead relied on questionnaires etc. composed and completed by others. As a result there was at least one significant error in his assessment or interpretation of the information available to him.
Both in his Report and evidence before the Tribunal MOR emphasised his belief that WA had sought to “distract” TS. He refers to W approaching TS , waving his arms with the objective of drawing the latter’s attention away from the Tank Cell Area… “it was the misdirection I was concerned with”. This was fundamental to his assertion that there was a “cover up”.
From TS’s evidence before the Tribunal it was quite clear that this was a misrepresentation by or misunderstanding on the part of MOR as to the nature of the encounter that had occurred between TS and W.A. The encounter was nothing like described by MOR. Instead the Tribunal heard the evidence of TS that he approached WA in the Tank Cell Area and briefly questioned him and that it was at that point that WA pointed towards the gas line. In his evidence TS confirmed that he had given no-one the version narrated by MOR in his Report. When in the Tank Cell Area TS did not see a compressed air hose out of place or any evidence of horseplay.
As DW had clearly concluded as early as 14th September 2011 that the focus was on the Tank Cell Area, the Tribunal is concerned that this may have communicated itself in the briefing given to MOR and consequently influenced him in the approach taken and his assimilation and interpretation of the information provided to him. Was MOR presented with a hypothesis that he then set about proving?
MOR came up with a theory having discounted other possibilities. Based on his belief in the false premise that DW had taken pro-active steps to distract the Health & Safety Officer, he concluded that “one or all did “something”. He could find no evidence of what this something was but surmised that it might have involved misuse of compressed air with plastic bottles. There seemed to be an element of conjunctive about MOR’s findings. What is disconcerting is that before the Tribunal MOR indicated that he was “100% sure” that this is what happened. This position could not be justified based on circumstantial factors and erroneous misinterpretation of information which could have been avoided had he spoken to the Principals and, in particular to the employees, the Health & Safety Officer who had been first to arrive in the Tank Cell Area
Taking the totality of the evidence the Tribunal has reservations as to the objectively and impartially of the investigative process, in particular, and is further concerned at the lack of independence of the disciplinary process. The Claimant was faced with a Disciplinary Meeting where the individual conducting the meeting and defending the outcome had already clearly stated that Dismissal was the appropriate sanction.
The Tribunal finds that the Claimant was unfairly dismissed. The sum of €34,000.00 is awarded Under the Unfair Dismissals Acts, 1977 to 2007 being the sum which the Tribunal considers to be fair and reasonable in all of the circumstances and in light of the evidence heard and documents submitted.
The Tribunal also awards the Claimant the sum of €1,755.00 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005
Sealed with the Seal of the
Employment Appeals Tribunal