EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Joseph Floyd (Snr) – claimant UD845/2012
Clare County Council - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr T. Gill
Ms H. Henry
heard this claim at Ennis on 27th June 2013 and 22nd October 2013
and 18th February 2014 and 26th May 2014
Claimant: Ms.Liz Murray on behalf of Mr Gerard Kennedy, SIPTU,
Liberty Hall, Eden Quay, Dublin 1
Respondent: Mr Don Culliton, Local Government Management Services Board,
Local Government House, 35-37 Ushers Quay, Dublin 8
All the events surrounding the claimant’s dismissal started on 13 May 2010 when the claimant mounted a protest against the respondent’s use of contractors on a job and gave an interview to a local radio station. The respondent is a County Council. The protest involved the claimant threatening to set himself and the plant machinery on fire.
The Investigator (PM) gave evidence. PM is an engineer with the respondent since 1999. As a result of the incident of 13 May 2010 the claimant had been suspended by letter of the 17th of May 2010. The suspension letter stated that he was suspended to allow the respondent to investigate the allegation of Gross Misconduct namely, ‘Bringing the Council into Disrepute.’
PM was appointed as the investigator by letter of the 30th of June 2010. PM was given a Terms of Reference for the investigation which stipulated the following allegations for investigation;
‘To investigate the circumstances that led to an alleged breach of the agreement reached, through SIPTU union, between the council and (the claimant) following the incident that occurred on Thursday 13th of May 2010.
To investigate allegations that (the claimant) breached Health & Safety regulations and by doing so allegedly placed his colleagues at risk on the 13th May 2010 and exposed the Council to serious Health & Safety risks.
To investigate allegations that (the claimant) caused the Council unnecessary disruption and cost arising from the incident of 13th May 2010 i.e. cost associated with delaying the roads programme, costs associated with cancelling external contractors and machinery, costs associated with the call out of the Fire service. (excluding costs associated with external agencies of ambulance and emergency response unit.)
To investigate an allegation of Gross Misconduct that (the claimant) allegedly brought the Council into disrepute by conducting an interview on (the local radio station) on Monday 17th of May 2010 discussing the incident that occurred on Thursday 13th May 2010 during which he allegedly alludes to his intentions to mount further protests against council works.
To investigate allegations that (the claimant) continued to make inappropriate contact with the colleagues on the (road crew) allegedly voicing his objections to certain council works going ahead in the weeks following the incident on Thursday 13th May 2010.’
After extensive interviews with the witnesses and reviewing all the documentation; the first, second and fourth allegation were upheld. An extensive investigation report was compiled and finalised in May 2011, a copy of which was provided to the Tribunal. There was a delay in finalising the report as, during the interview process the claimant made some statements including, ‘I will die in front of the office’ that concerned the respondent, so they decided to send him to a doctor in order to certify him fit to continue the process. The finalised report was submitted to the respondent’s HR department.
The claimant’s representative raised objections to the investigation process in February 2011, namely the confidentiality of the documentation. As a result of their concerns the claimant did not participate in the investigation process. When interviewed the witnesses were all asked whether they thought the claimant should be dismissed for his actions or not. As a result of an objection this question and answer was later removed from the witness statements and not taken into consideration when making the decision on the allegations.
The then Director of Services (DT) gave evidence. DT was given the investigation report to make a final recommendation on the claimant’s sanction. DT requested a meeting with the claimant on two occasions; there was no response from the claimant or his representative. After a month of consideration DT made the decision to dismiss the claimant and communicated this decision to the County Manager. The County Manager notified the claimant of his dismissal.
Any questions and answers that had been deemed inappropriate had been redacted from the investigation report when it was given to DT for consideration.
The Tribunal heard evidence from the respondent’s Human Resource Officer that he attended the scene where the claimant had mounted his protest on 13 May 2010. The claimant, who was a SIPTU shop steward had locked himself in his van and threatened to set fire to himself and council property. The Gardaí, fire service, ambulance service and emergency response unit were at the scene. The claimant was protesting at the methodology used by the respondent to carry out road works, in particular the use of external contractors to carry out the work. In that regard a copy of a cost containment agreement in place from 2010 between the respondent and SIPTU was opened to the Tribunal.
The witness gave evidence that he engaged with a SIPTU official and a Garda Sergeant, and all agreed to try and calm the situation. He was concerned for the safety and welfare of the claimant who was seeking an assurance that he was not dismissed from his employment. As a result of this he issued a letter to the claimant’s representative stating “I refer to your enquiry in relation to the employment status of (claimant) by telephone today. On behalf of (respondent), I wish to confirm that (the claimant) is not dismissed”. He told the Tribunal that the wording of this letter was agreed with the SIPTU representative who was in attendance and the scene. The formula of words used in the letter achieved the desired result which was to restore calm and save a life. He stated that the letter was given under duress and had the effect of diffusing the situation and restoring calm. The claimant ended his protest on the day and the incident which had lasted for a significant number of hours ended without injury to anybody.
The claimant attended work on the following day, 14 May 2010 but the witness was concerned for the claimant’s welfare. He contacted the claimant and explained that he felt the claimant should take time away from the workplace. The claimant was placed on administrative leave, on full pay for health & safety reasons. This action was taken based on the duty of care that the respondent had to the claimant as an employee. An independent medical appointment was also arranged for the claimant for 19 May 2010 and subsequent to the receipt of this medical report it was proposed that the claimant would meet with the respondent’s employee welfare officer for a confidential discussion on the options available. The respondent also undertook to fully co-operate with the claimant’s own G.P. in addition to his required attendance at the independent medical. This position was conveyed to the claimant by way of letter dated 14 May 2010.
The witness told the Tribunal that the claimant was not pleased with the decision to place him on administrative leave. The claimant subsequently contacted the print media and local radio (copies of the transcripts of the radio reports and newspaper publications were provided to the Tribunal). Following this the issue then became an investigation/disciplinary process. The witness drafted the terms of reference for the investigation (a copy of which was opened to the Tribunal) and an investigation team was appointed to establish the facts surrounding the allegations of gross misconduct against the claimant. During the course of a protracted investigation the respondent was in receipt of medical reports from an independent medical practitioner and the claimant’s own G.P. which verified that the claimant was medically fit to partake in the investigation. The investigation team interviewed a number of witnesses during the course of the investigation. The team made several unsuccessful attempts to interview the claimant as part of the investigation and ultimately by way of letter dated 10 February 2011 arranged a meeting for 11 February 2011 with the claimant. This letter confirmed that it will be a final opportunity for the claimant to respond to the allegations presented to him. The claimant’s full co-operation was requested in this letter. This meeting was subsequently re-scheduled to 18 February 2011 at the claimant’s request. Ultimately the claimant did not co-operate with the investigation and the team concluded their report without the claimant’s involvement.
The report of the investigation team was presented to the Director of Services of the respondent. The investigation team had upheld three of the charges of gross misconduct against the claimant and the Director of Services accordingly recommended to the County Manager that the claimant should be dismissed. The claimant was given the opportunity of appealing this recommendation and no appeal was received. The County Manager then signed a Managers Order dated 6 September 2011 dismissing the claimant from his position.
A senior engineer with the respondent gave evidence that he attended the scene on 13 May 2010 and made a contribution towards diffusing the situation. He gave evidence that the claimant had strong views in terms of how the work was being carried out. He (the claimant) believed the work should have been carried out by direct labour rather than by external contractors. He had raised these concerns on a previous occasion and that matter had been resolved by the witness going on site and speaking with the claimant. The claimant stood down his protest following that action. No disciplinary action was taken on that occasion by the respondent other than the claimant’s pay being reduced for the number of hours not worked during his protest. The cost containment agreement that was in place provided for SIPTU to raise issues in relation to the use of contractors but it did not allow for an employee to raise such a protest.
The witness gave further evidence that the primary concern on 13 May 2010 was to diffuse the particular situation that had arisen and the most important thing was to avoid any drastic consequences. Accordingly a commitment was given that he was not dismissed at that particular time and the expectation was that the claimant’s protest would then end. The respondent did not ask the claimant not to make any comments to the media and he was not told not to report for work on the following day.
A civil engineer for the respondent gave evidence that he considered the methodology used by the respondent to carry out the road works to be the most suitable. It was his responsibility to decide on how the road works should be completed. He was aware of the claimant’s opinion and knew that the claimant had refused to erect signage on the road on 11 May 2010, two days day prior to the incident. The claimant told him that he would be taking action to prevent the road works proceeding and he (the witness) reported this to his line manager.
A second foreman gave evidence that he was asked to attend the work on 13 May 2010 and carry out the work if the claimant refused to do so. He was reluctant to do so but reported to the scene. He told the Tribunal that the claimant was in his van and seemed agitated. The claimant did not threaten him and he had no issues with the claimant. He was interviewed as part of the investigation into the incident but did not want to be part of the investigation. He did not sign his statement as he did not want any involvement in the matter. He understood that the claimant had been given a commitment that he would not be sacked but he was not sure who gave that commitment.
The claimant’s brother gave evidence that he is also an employee of the respondent. He attended the scene on 13 May 2010 and gave evidence that the claimant asked if his job was safe. He told the Tribunal that (TT) for the respondent said the claimant’s job was safe. He gave evidence that a benchmarking agreement was in place and that the work was to be kept in house and carried out by council staff. He gave evidence that he received a text message from the Human Resources Officer requesting that he talk to the claimant and get him to take a few days off work. He got a further phone call from the Human Resources Officer on the following morning with the same request. When he refused to do so he gave evidence that he was told that the heavy hand of the council would deal with his brother.
He gave evidence that he also received a phone call from (TT) stating that he was aware that serious issues existed between the claimant and (SL) for the respondent.
TK (a trade union official) told the Tribunal that he had understood that the respondent had given an undertaking not to dismiss the claimant.
The Tribunal found the testimony of TK persuasive and felt that the claimant was dismissed because he went on the radio. However, the Tribunal felt that it would not be appropriate to reinstate or re-engage him and that the claimant contributed to his dismissal. He did not co-operate with the process and had even threatened to hang himself. The Tribunal considered the claimant’s obligation to try to mitigate his loss. The Tribunal found it unfair that the respondent found the claimant guilty of serious insubordination although he had not been charged with that. There was a lack of evidence to substantiate the charge of bringing the name of the respondent into disrepute. The Tribunal was not satisfied that this charge was sufficiently proven to warrant dismissal. The claimant was not given a copy of his disciplinary procedures until many months after the key incident and a couple of days before his dismissal.
In all the circumstances of the case the Tribunal, in allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, unanimously deems it just and equitable to award the claimant compensation of €30,000.00 (thirty thousand euro) under the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal