EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Ciaran Murphy UD1657/2012
against the recommendation of the Rights Commissioner in the case of:
Proctor & Gamble (Manufacturing) Ireland Limited
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr F. Moloney
Ms. E. Brezina
heard this appeal at Dublin on 7th April and 21st October 2014
Appellant: Mr. Vernon Hegarty, Siptu, Liberty Hall, Dublin 1
Respondent: Mr. Tim O'Connell, IBEC, 84-86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of an employee appealing the recommendation of the Rights Commissioner ref: r-096744-ud-10/JW under the Unfair Dismissals Acts 1977 to 2007.
The respondent’s representative told the Tribunal that the appeal was lodged outside of the time limit set down in the Act and therefore the Tribunal had no jurisdiction to hear the appeal.
Section 9(2) provides that “an appeal under this section shall be initiated by a party by giving, within 6 weeks of the date on which the recommendation to which it relates was given to the parties concerned, a notice in writing to the Tribunal and stating the intention of the party concerned to appeal against the recommendation and a copy of the notice shall be given to the other party concerned within the said period of 6 weeks.”
The appellant’s representative told the Tribunal that the appeal form was completed and posted to the Tribunal within the time allowed.
The Tribunal heard evidence from AD, from the union office in Carlow. She submitted an excerpt from her day book record to the Tribunal that showed post destined for the Tribunal was sent by registered post on 23rd March 2011.
The claimant’s representative submitted a track and trace record from An Post which showed that the registered post was received and signed for in the Department of Jobs, Enterprise and Innovation on 24th March 2011.
The respondent’s representative maintained that there was no way to establish as fact that the appeal form was one of the documents received as per the track and trace record. He submitted that the only definitive was that the T1A form notifying the respondent of the appeal was date stamped on 16th October 2012 and therefore the appeal was not lodged with the Employment Appeals Tribunal until that date.
The claimant’s representative reiterated that the form was completed within the time limit on the 22nd March 2011. It was posted from Carlow, as per the day book post record, the following day, the 23rd March 2011 and was received by the Department of Jobs, Enterprise and Innovation the day after that, as per the track and trace record, the 24th March 2011.
The Tribunal decided that on the balance of probabilities enough evidence was provided in respect of the form being received within the six week time limit set down in the Act to confer responsibility and jurisdiction on the Tribunal and accordingly the appellant’s case will proceed under the Unfair Dismissals Acts 1977 to 2007.
The respondent manufactures tooth brushes among other products. A manager who was part of an appeal panel that heard the appellant’s case against the decision to dismiss him told the Tribunal that all safety matters relating to the manufacturing process are treated very seriously and is a fundamental aspect of that process. Notwithstanding that this witness accepted the appellant’s contention that his behaviour in flouting safety was motivated by habit this manger emphasised that those safety rules were not to be broken. He maintained that it was not common practice among the workforce to behave contrary to those safety procedures.
The appeal panel offered the appellant a lessor sanction that dismissal but that offer was declined.
The appellant stated he was shocked at his suspension and subsequent dismissal. That reaction was based on the belief that such behaviour was common place within the manufacturing plant and had been tolerated by the respondent. He accepted he was aware of the safety procedure and that this action in inappropriately operating machinery was against those procedures. Since he concluded that the offer of a lessor sanction was not a proper option he therefore did not accept it.
A retired maintenance technician commented that the issue of safety has become unrecognisable in recent years. What employees including the appellant did earlier was no longer acceptable. Such safety breaches were generally conducted when out of sight of managers.
A current machine setter echoed that attitude towards safety and added that it is treated more seriously now.
The Tribunal recognises the importance of health and safety in the workplace and notes the improvements made by the respondent in recent years in that regard. Had the appellant injured himself while conducting an unsafe act we might ask what claim would then have been made against the respondent particularly regarding personal injuries. The appellant would have to prove that the respondent neglected in permitting him to do what he did.
The appellant was fully trained in this Tag-Out/Lock -Out procedure and other safety measures and had signed a questionnaire some months earlier on that topic. He was also a shop steward and as such must have had a greater knowledge of health and safety for him and his colleagues. It was argued on behalf on the appellant that there was a “culture” or common practice among employees to do what the appellant did. However, the evidence called did not support that argument. The witnesses for the appellant laid great stress on safety measures overseen by management in recent years. One stated that the issue of safety was different when managers were not present. This “culture” argument would only be valid had management consented to it or, at least, knew of it.
The appellant made some procedural points pertaining to the disciplinary process. However, the Tribunal accepts that the respondent acted properly regarding that process. In fact the respondent went further than this. Those who heard the appeal against the dismissal decision also gave the appellant the option of accepting a short period of suspension and demotion on his return to work. He did not accept that option and therefore the dismissal proceeded.
It is an open question whether the appellant was dismissed at all but the Tribunal approached the case that he was dismissed. The Tribunal cannot find that this dismissal was unfair. The Tribunal holds that the respondent has shown substantive grounds to justify the dismissal under section 6 of the Acts.
The appeal under the Unfair Dismissals Acts, 1977 to 2007 fails and the recommendation of the Rights’ Commissioner is upheld.
Sealed with the Seal of the
Employment Appeals Tribunal