EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Tomasz Burczy - claimant UD618/2012
Tesco Ireland Limited - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr F. Moloney
Mr F. Keoghan
heard this claim at Dublin on 4th March 2014
Claimant(s) :Mr. Kevin Bell B.L. instructed by Sylvia Kolasinska,
Maguire McClafferty Solicitors, 8 Ontario Tce, Portobello Bridge, Dublin 6
Respondent(s) :Mr Tiernan Doherty,
IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:
Summary of Evidence
The claimant was employed as a warehouse operative with the respondent company from 29 April, 2008 until 16 February, 2012 when he was dismissed for breaching a health and safety rule.
Giving evidence, the site Depot Manager (DM) told the Tribunal that he observed the claimant using his mobile phone while operating one of the mechanical handling equipment (MHE) vehicles in the warehouse. He saw the claimant with the phone in his hand and “laughing” while continuing to drive the vehicle. The claimant was fully trained on the safe handling of vehicles and was aware that the use of mobile phones was prohibited while operating a vehicle. The DM reported the matter to the shift Manager.
The DM believed the claimant was reading text and then laughing. After he reported the matter, he had no further involvement in the process.
Giving evidence, the Section Manager (SM) indicated that staff had been recently briefed on the use of mobile phones while operating a vehicle. At the weekly team meetings of the 31 October 2011 and the 30 January 2012 where a more in depth message regarding the seriousness of using a mobile phone was highlighted to all employees by the SM. The shift manager asked him to initiate an investigation into the claimant’s mobile phone use while operating a vehicle. He was responsible for establishing the facts and met with the claimant on 2nd February 2012. The claimant stated that he was looking at his phone to check the time. At the meeting the claimant apologised for his behaviour. At that stage, the SM adjourned the meeting as he did not have the authority to suspend an employee. He referred the matter to his manager, WD, who took over the meeting.
The witness indicated that the reason staff had been briefed recently regarding the “highway code” was due to an incident where an employee using his mobile phone and operating a vehicle had occurred.
WD told the Tribunal that he was called into the investigation meeting to continue the process and he informed the claimant that he was being suspended with immediate effect with pay pending an investigation. The claimant was made aware of the possible consequences of his actions. After the investigation and disciplinary meetings, the claimant was dismissed for serious misconduct.
At the second meeting held on the 6 February 2012 the claimant again admitted he had used his mobile phone to check the time. The use of the phone was never disputed. The meeting of the 7 February was arranged to communicate the outcome of the investigation to the claimant. The claimant was given an opportunity to explain the reason for using his mobile phone. The claimant was informed that his case was being escalated to a disciplinary hearing. WD referred the matter to the operations manager.
The operations manager (OM) outlined the extensive training employees receive on health and safety issues in the workplace. Regular refresher training courses are conducted with employees. Previous incidents at the depot regarding mobile phone use had come to managements attention in the weeks prior to the claimant’s actions. The policy on sanction for such actions had changed and a line had to be drawn in the sand. The decision to include instant dismissal was communicated to employees in the weeks leading up to the claimant’s case.
Having examined the facts of the investigation he viewed the health and safety breach by the claimant as serious misconduct. The disciplinary meeting was held on the 10 February 2012. Nothing was disputed by the claimant other than that he checked the time on the phone and was not reading text. The claimant apologised and stated he would not repeat the action. The OM was of the view that the purpose of using the mobile was not relevant at all as using, holding and/or checking a mobile phone use was not permitted while operating a vehicle. He took the decision to dismiss the claimant. The claimant’s dismissal was confirmed by letter dated the 16 February 2012. The OM did not interview or meet with the depot manager who had witnessed the breach prior to dismissing the claimant. There was no CCTV footage covering the area where the breach occurred.
The claimant appealed his dismissal to the project manager (PM). The PM received a letter of appeal dated 20 February 2012. At the appeal meeting the claimant was asked if he had any new information to support the appeal. In upholding the decision to dismiss the claimant the witness was satisfied that employees were informed at team meetings prior to the claimant’s incident of the seriousness including dismissal for those found in breach of the health and safety policy and in particular the message communicated on the 30 January 2012.
The claimant told the Tribunal that he took a look at his mobile phone while operating a vehicle and having turned in to an aisle to complete the order he was working on noticed the DM approaching. The DM asked if he had a mobile and he replied that he had. He was told to go to the office and wait for his manager. He admitted to the SM that he had looked at his phone and was suspended with pay by WD the shift manager. He was asked to empty his locker and escorted off the premises. He was informed of his dismissal on the 16 February 2012 and appealed the decision to the PM. He was shocked to learn of his dismissal as he was aware of other employees who had breached the policy and had received final written warnings. The respondents approach was not consistent.
The Tribunal having considered the evidence of the parties it is clear the claimant’s case was about the proportionality of the sanction imposed. The claimant from an early stage of the process accepted he should not have used his mobile telephone. The respondent’s case is that following other incidents it decided to impose heavier sanction on employees observed using their mobile phones. At a weekly team meeting it is the respondent’s position that they communicated the severity of the revised sanction should an employee be observed using or holding a mobile telephone.
The respondent relied heavily on the assertion that using a mobile telephone when in control of an MHE vehicle will “lead to disciplinary action been taken which could lead to a sanction, up to and including dismissal, being applied”.
The Tribunal heard evidence from the respondent directly that prior to this briefing on the 30 January 2012 other employees had received final written warnings for using a mobile telephone, one while operating an MHE vehicle and the other having stopped operating the MHE to use his mobile telephone.
The respondent seems to believe that the week 49 briefing to employees imposed a zero tolerance policy in terms of the use of a mobile telephone i.e. if observed using a mobile telephone while operating MHE vehicles you will be dismissed however, the briefing still allows for lesser sanction.
In the circumstances the Tribunal believe that there were any number of lesser sanctions the respondent could have imposed on the claimant.
The Tribunal finds that the claimant was unfairly dismissed from his employment however he contributed significantly to his dismissal. The claimant received extensive training in health and safety wherein it was repeated constantly that he should not use his mobile telephone when operating the MHE vehicle. He himself admitted he was aware of this and accepts he should not have used his phone thereby putting other parties in potential danger.
The Tribunal in considering the claimant’s contribution award him a lump sum payment of €20,000.00 under the Unfair Dismissals Acts 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal