EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD117/2015
CLAIM(S) OF:
Sebastain Bobrecki -claimant
against
Autolaunch Limited -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath B.L.
Members: Mr. M. Noone
Ms. S. Kelly
heard this claim at Carlow on 16th March 2016, 7th June and 8th June 2016
Representation:
Claimant: Mr. Mark O’Connell B.L. instructed by Mr. Donal Holohan, Maguire McClafferty, Solicitors, 8 Ontario Terrace, Portobello Bridge, Dublin 6
Respondent: Ms. Mairead Crosby, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced over the course of three days of hearing. The claimant brought a claim under the Unfair Dismissals legislation with respect to the termination of his employment which was notified to the claimant by way of letter dated the 22nd October 2014. The respondent company accepts the fact of termination and acknowledges that the burden of proof rests with it to demonstrate it has acted fairly and reasonably in all the circumstances. The respondent relies on what it perceives to be the unacceptable acts of the claimant as having been acts of misconduct so gross that the respondent was entitled to dismiss the claimant for same.
The respondent company is an engineering one employing in the region of 300 employees and having a turnover in the region of 40 million USD.
The claimant came to the respondent company in 2008 having emigrated from his native Poland in and around 2006 with an educated background in engineering. The claimant worked for 6 years with the respondent company on a salary of somewhere between €30,000 and €33,000 per annum.
The Tribunal accepts that the health and safety standards being applied at this plant were of a very high standard. The employees were working with dangerous and loud machinery and all appropriate safety measures were being introduced and implemented. The Tribunal notes that employees were being sanctioned as far back as 2006 for breaches of the safety standards expected of them and in this regard the letter relating to G.D. is relevant.
Unfortunately for the company and despite its high standards aforesaid a serious accident befell one of its employees in October 2013 when a Mr. J.P. lost the top of his finger when a rotating part of one of the machines caught on his glove pulling his hand into the machine.
The respondent company’s response to the incident was quick and thorough and the Tribunal is in no doubt that every employee on the factory floor knew that there was a strict prohibition on the wearing of gloves near moving parts of machinery. The Tribunal acknowledges that this would be a normal safety precaution in any engineering company but the need to obey this particular instruction was heightened and intensified by the serious nature of J.P.’s accident.
The claimant in his evidence indicated that at the weekly “huddle” meeting he, being a non-native English speaker, would not always be clear on what was being said and he may or may not have asked for assistance in this regard. This is not relevant to these proceedings as the Tribunal must find, as a matter of fact, that the claimant knew that he must not wear his gloves around moving machinery parts and indeed the claimant confirmed as much in his evidence.
At all material times, the claimant was working at a metal milling machine which could be computer or manually operated. On the 8th August 2014 a fellow employee of the claimant by the name of R.B. observed the claimant wearing gloves and wiping an area of the panel close to the moving spindle. Mr. R.B. is adamant that what he saw was extremely dangerous and totally contrary to all training, notification and instruction heretofore given to the claimant and all the workforce. R.B. immediately notified his observations to the claimant’s immediate supervisor (M.J.) and to Mr. O’R the Acting Health and Safety Manager.
Within an hour of this incident the claimant was called up to a meeting with both these gentlemen and a note taker and the oral account of what Mr. R.B. saw was put to the claimant who was suspended on full pay pending investigation.
There can be no doubt that there are differing versions of what was said at this initial “suspension” meeting –both Mr. O’R and Mr. M.J. indicated that the claimant had “forgotten” to remove the gloves. Whilst the claimant maintains that he was offering a version of events that would certainly be put more clearly in the coming days. The Tribunal has to note that the meeting was unsatisfactory insofar as the claimant was immediately disadvantaged by not having a fluent understanding of English. This was not the point in time at which a “defence” should be sought (per the notes) and the allegation for which the claimant was being suspended should have been simply put to him pending an investigation.
The claimant went home that day and the Tribunal has to have sympathy for his lack of understanding of what had just happened. He had no idea how long his suspension was for or how an investigation would be conducted and in what timeframe. It is common case that the employee had a good work record with no previous behaviour issues of which the Tribunal has been appraised.
By the 11th of August the claimant had formulated his position (which position he maintained for the duration of the investigative and disciplinary process).
The claimant fully accepted that he was wearing gloves in the vicinity of the milling machine. The claimant has confirmed that he knew both through his own experience and common sense as well as the emphasis placed by the company that he was not to wear gloves anywhere near moving machinery. The claimant explained that he had noticed after the start of his shift that the oil collection was spilling out and needed to be emptied – as it was causing a hazard. The claimant explained that he would always wear gloves when changing the oil container as it is odorous and unpleasant. In his evidence R.B. confirmed that there is no difficulty with the claimant changing the oil container while the machine is in operation. It seems however that having removed the oil container the claimant checking the machine was alright to be left operating in his absence for a few minutes also noticed a rag and/or oil that needed to be removed and/or wiped away from the machine. The claimant’s evidence is that whilst he executed this act which involved him moving towards the machine he was aware that the moving spindle was over on the far side of the panel and therefore not a danger to himself as he removed the rag.
The claimant says he did not hear R.B. bang on the perspex window but was aware that R.B. was watching him and was angry at him. By way of explanation for the wearing of the gloves near the machine, the claimant said he showed R.B. the can and moved on to complete the job.
The Tribunal acknowledges this account only came to light over the course of the several meetings and written accounts however the account has been consistent and the 11th of August letter has the bulk of what was important to the claimant’s version of events.
The Tribunal notes that the investigation conducted in the aftermath of the suspension only obtained a written statement from R.B. on the 12th of August (signed on the 25th of August) and it is clear from this statement that the claimant’s account had not been put to R.B. Indeed it seems and has been confirmed by the respondent witnesses that the claimant’s version of events was never formally put to R.B. Thus the claimant’s contention that R.B. was up to six metres away and looking through perspex glass and faced only with the claimant’s back; was never put to R.B. for comment, confirmation or denial.
Thus the Tribunal is faced with the stark choice of determining whether it was reasonable for the respondent to choose one account so much at variance with the other when no effort has been made to clarify fundamental issues of fact.
In his evidence Mr. O’R and indeed Mr. M.H. (the disciplinary officer) indicated that R.B. never saw the oil container but the Tribunal cannot accept this as verification of the fact as they had ample opportunity to have R.B. say this directly was given in the two month period post incident. This opportunity was simply not availed of. RB was never asked.
The investigation concluded this matter should go to the disciplinary stage and as previously stated the Assistant General Manager (M.H.) took over from this point. The Tribunal cannot comprehend how a company with the turnover and resources at the disposal of this company did not apply proper fair procedure. Both the disciplinary overseer and indeed the appeal stage overseer indicated that they returned to all the witnesses to discuss the investigation but these conversations were never made known to the claimant who now faces a flawed investigative process that is obvious to him, and a flawed disciplinary process where he has no idea what has been said.
On balance the Tribunal cannot find evidence exists to suggest that the claimant was being in some way persecuted for having brought a personal injury claim against the company. Instead the Tribunal can only find that this was such a fundamentally flawed process of investigation and discipline that the claimant must succeed under the Unfair Dismissals Acts, 1977 to 2007. In light of the evidence proffered regarding attempts to obtain future employment the Tribunal awards compensation of €32,000.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)