EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Andrew O'Neill - claimant UD1352/2013
Engineering Support and Services Limited – respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. O'Leary BL
Members: Mr D. Moore
Mr C. Ryan
heard this claim at Dublin on 8th January 2015 and 30th March 2015
Claimant(s): Mr Fergal Doyle BL instructed by Mr Seamus Taaffe,
Francis B Taaffe & Co, Solicitors, Edmund Rice Square, Athy, Co Kildare
Respondent(s): Ms Siobhan McGowan
Purdy Fitzgerald Solicitors, Kiltartan House, Forster Street, Galway
The determination of the Tribunal was as follows:-
The claimant’s representative raised a preliminary issue about the contract of employment which the respondent was relying on submitting that it was unsigned and undated and the claimant did not recognise the contract. The Tribunal noted this and directed that it would rely on the sworn evidence of the witnesses.
Summary of Respondent’s Evidence:
The respondent company provides technical and engineering support services and maintenance to its customers. The operations director gave evidence of training the claimant to the role of line support technician at a food production site in Naas. He described the claimant as an excellent technician and outspoken. Prior to an incident on 13th September 2012 the employment was relatively uneventful. On 19th September 2012 the production manager at the site informed him that the claimant was found sleeping in a room on 13th September 2012 when he should have been on the plant floor. He met the claimant on 25th September 2012 and was told that he was suffering with a sinus condition and was resting his eyes briefly. The claimant had taken an unauthorised break and had not raised his sinus difficulty with his team leader on the date in question.
A disciplinary meeting was arranged and the claimant was advised to bring a representative if he wished. At the meeting no further explanation for the incident was forthcoming. The witness viewed the incident as severe and the client was not happy with the situation. A decision was made that although the incident was considered gross misconduct the claimant as a long standing employee would be given a second chance and a final written warning and a period of one week unpaid suspension followed on 27th September 2012. At the meeting the claimant sought a pay off or a move to an alternative site. The final written warning was not appealed by the claimant.
On 10th October 2012 the claimant was found using equipment without the necessary protective eyewear. The claimant when questioned accepted that he had breached the site health and safety regulations. The offence was serious and a second final written warning followed.
On 12th February 2013 a manager at the site reported a loss of product due to the claimant’s failure to adjust the machinery on the production line. The manager reported that the claimant did not remain on the line during production. An investigation meeting was held with the claimant who was accompanied by a colleague. The claimant explained at that meeting that he had made the necessary setting changes but somebody must have reset the machine. He added he was under huge pressure at the site where major cost cutting measures had taken place. The witness accepted that it was a pressurised working environment however he had not received any complaint from the claimant regarding his workload. The claimant was suspended pending an investigation. A disciplinary meeting was arranged on 26th February 2013. The decision was taken to dismiss the claimant.
The Managing Director (MD) of the respondent company gave evidence. He heard the appeal alone on 14th March. He met the claimant in a hotel. He considered the purpose of the appeal was to listen to the claimant. The claimant went through the three incidents. He did not deny not wearing safety goggles. He had his own version of events regarding the two other incidents. No new information was provided. He asked the claimant a few questions and if he wanted to add anything. He then considered the situation overnight. He did not interview anyone else or consult any documents. He considered whether there were any mitigating factors or any mistake but he could not find any. He told the HR Manager that he could not see how he could allow the appeal. The HR Manager drafted the letter to the claimant upholding the dismissal which the MD signed.
During cross-examination the MD denied that the claimant’s dismissal had anything to do with his involvement in an industrial dispute 18 months before. He agreed there had been recent redundancies but disputed that it had suited him to get rid of the claimant. He did not bring a copy of the disciplinary procedure to the appeal or read it beforehand. The claimant had not received any counselling, verbal reprimands or formal verbal warnings prior to the final written warnings. The MD contended that the procedure was allowed for under gross misconduct.
The claimant’s team leader, also a subcontractor, gave evidence. He worked directly with the claimant from 2011. The claimant had not told him of any problems with his sinus on the night he was found in the darkened office. The operations director and another company manager asked him about his knowledge of the incident. He knew the claimant suffered with his sinuses and on a different occasion had given him the option of going home. The witness was not involved in the safety goggles incident.
On the last incident on 12th February 2013 the claimant was involved with the trial production of a new pizza product. The product is mixed, proofed and pressed into the pizza shape in one continuous process. The witness was working further down the line. He spoke with the claimant and noted that the product had come out of the proofer at approximately 6am. He had no further conversations with the claimant.
Engineers have their own phones and operators can call directly for support. He disputed that the claimant had conflicting instructions at the time. It was normal for an employee to call him if they had conflicting instructions. He was called to attend a meeting at 8am but he was unavailable. The engineering manager spoke to him at 8.50am and said that the pizza pressing had been a disaster as the settings had been wrong. He was told to go home as his shift was over. The operations director spoke to him during the investigation. He had no further involvement. In cross-examination he agreed that it was and is a pressurised work environment.
Summary of Claimant’s Evidence:
The claimant gave evidence that he had worked at the factory since 1999 and had a good working relationship until he received the final written warning for being in the darkened room on 13th September 2012. He contended that he informed his team leader of his condition that evening. He did not go home early as the team leader was new to the bakery area. He went to a darkened room as he was not feeling well. He was not asleep and had his phone switched on. He stood up as others came in and left. He attended his doctor the following week and was certified off sick from work from 24th September 2012 until 1st October 2012. He received a final written warning and was suspended on 27th September 2012. He considered appealing but one of the bakery managers advised him not to as if he did he would be removed.
Regarding the second incident he agreed that he had not been wearing protective goggles. He was under time pressure and had decided not to return to the workshop to get them. The company had been taken over by new management after the industrial dispute. After the takeover one engineer had to cover two bakeries. Previously they had three or four floating engineers. At night he was alone and it was not feasible to stick to health and safety guidelines. He told the operations manager about the time pressure in work. He asked to move or even take redundancy. He felt the writing was on the wall after the final written warning.
On 12th February 2013 the pressure was on with trialling the new pizza. There had always been a problem at pressing over the previous three months. He was under time pressure as he had to monitor the production line and was later asked to change a chain in the other bakery and to check a mixer unit prior to a health and safety audit the next day. He asked the senior operative to call him if there as a problem. He did not receive any calls from the operative. He had manually set the poppets to the normal setting before he left for bakery two. At 7.30am the engineering manager told him that a bank of poppet valves had not been turned on, which he disputed.
He received a phone call from the operations manager and was invited to a meeting. He did not know what it was about. He did not believe it was about the poppets as he understood that had been dealt with when he spoke to the engineering manager. He brought a colleague with him when he met the operations manager in a hotel car park. The conversation was amicable. He was suspended for one week with pay pending an investigation. There was no mention of dismissal.
He attended the meeting on 26th February 2013. He was advised to bring a witness and he brought the same colleague as previously. He had not been contacted during the investigation. On arrival he was handed his letter of dismissal. The meeting lasted approximately 30 minutes, but he felt that whatever he said would not matter. He appealed to the MD who was friendly and open but he felt he was just going through the motions. He got a phone call the next day to confirm the outcome which was followed up by letter. The claimant gave evidence of his loss.
The Tribunal having considered the evidence adduced in this case has decided that the respondent failed to implement proper procedures. With regard to the dismissal the investigation was not properly conducted and indeed the letter of dismissal was written prior to the disciplinary meeting which in fact was given to the claimant prior to the commencement of the meeting. The same can be said for the appeal where the adjudicator of the appeal failed to review all the evidence.
The Tribunal also considered that the claimant by his actions contributed to the dismissal.
Having regard to all the circumstances the Tribunal finds that the claimant was unfairly dismissed and awards the claimant the sum of €15,000 (fifteen thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal