ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010124
Parties:
| Complainant | Respondent |
Anonymised Parties | A forklift operator | A Warehouse Distributor |
Representatives | Vivian Cullen SIPTU-Trade Union | Connor O’Gorman (IBEC) |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00013150-001 | 16/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00013150-002 | 16/08/2017 |
Date of Adjudication Hearing: 04/01/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Procedure:
In accordance with Section 8 (1)(a) of The Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and can consider any (and all) documentary or other evidence which may be tendered during the course of the hearing.
In particular, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 16th of August 2017) issued within six months of his dismissal, I am satisfied that I have jurisdiction to hear the within matter
In addition to the foregoing and in accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. The Complainant herein has referred a matter for adjudication as provided for under Section 11 of the Minimum Notice and Terms of Employment Act, 1973 and the referral has been made within six months of the date on which this claim accrued to the Complainant.
Background:
The Complainant was dismissed for Gross Misconduct and makes the case that the decision to Summarily Dismiss him without Notice was unfair. The Complainant was further in the circumstances denied his Statutory Notice pursuant to Section 8 of the Minimum Notice and Terms of Employment Act 1973 which states that “…Nothing in this Act shall affect the right of any employer or employee to terminate a Contract of Employment because of the misconduct by the other party.” |
Summary of Complainant’s Case:
The Complainant had an accident in the workplace when he drove his low level load picker into a gap he had previously created between a dock loader and a trailer. The Complainant gave his own evidence. The Complainant had always accepted that he had made a mistake. The mistake was however totally unintentional. The Complainant, through his representative, made the case that the sanction was totally disproportionate to the incident. The Complainant was challenging the premiss that his actions constituted gross misconduct. Per the High Court in Frizelle and New Ross Credit Union 1997 IEHC 137 “…The actual decision as to whether a dismissal should follow should be a decision proportionate to the gravity of the complaint, and the gravity and effect of dismissal on the employee.” The Complainant argues that it is a fundamental concept of proportionality is that it is intrinsically linked to necessity. That is to say, that the objective being pursued by the company must be legitimate and that the sanction being applied does no more than what is necessary to obtain that objective. Sanctions are applied to improve the behaviour of workers and are not meant to be applied for the sake of punishment. Sanctions should be remedial. The Complainant believed he could have learned from this experience and he sought a second chance. The Complainant believed he should be given some leeway in circumstances where the Complainant had been a loyal and good employee since 2005. The Complainant states that there were unsubstantiated findings of dishonesty made against him in the disciplinary process such that propelled his acknowledged act of misconduct into the category of “Gross Misconduct” giving rise to an inevitable consequential dismissal with no other sanction being considered. The Complainant believed that the operation of a Zero Tolerance programme with respect to breaches of Health and Safety procedures was unfair and punitive. The Complainant states that the decision making process is flawed in circumstances where the Respondent decision maker looked into the Complainant’s personnel file history and made assumptions about a “note to file” – which may or may not have been justified - but which was done without any reference to the Complainant and therefore unfairly disadvantaged him. The Complainant also expressed concerns about the use of an apparently standard template letter for the purpose of dismissal.
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Summary of Respondent’s Case:
Mr. D the Shift Operations Manager gave evidence on behalf of the Respondent. An Investigation had been conducted by the Warehouse Manager arising out of the workplace accident and on foot of that investigation a Disciplinary procedure was triggered. The Disciplinary process resulted in the Complainant being dismissed summarily and by a letter from Mr. D dated the 7th of June 2017 which was opened in detail to me. Mr D says that the decision to dismiss flowed from the unacceptable post accident steps taken by the Complainant. These amounted to a serious breach of the strict Health and Safety protocol known and operated in this workplace. The consequent fundamental Breach of Trust gave rise to a Gross Misconduct. The Appeal affirmed the finding of the initial decision maker. |
Findings and Conclusions:
I have carefully considered all that I have heard and all that has been presented to me in the course of these proceedings. Both parties prepared submissions and these were opened to me. The Complainant was a long standing employee in the Respondent warehouse depot. The depot is a 24 hour operation which allows for fresh and perishable goods to be brought in, sorted and distributed to supermarkets around the country in as expedient a manner as is practicable. There can be no doubt that the workplace must be run efficiently and with the utmost regard for the safety and health of all concerned as there are so many moving and mechanical parts to this operation. The Complainant was proficient in using several of the machines in the plant – though not all of them. At the time of his dismissal the Complainant was operating a low lift order picker which allows for the collection of goods and the loading of goods onto the back of trailers via a dock leveller. There is no real difference between the parties regarding the sequence of events and I understand that on the night of the 5th of May 2017 at about 23:50 the Complainant was operating a piece of mechanised handling equipment known as the low lift order picker in the course of his employment. The Complainant appeared to be working by himself. The Complainant was bringing “cages” of goods to be loaded onto a trailer to be driven away. This process involved driving his vehicle across the dock loader and into the rear of the waiting trailer. The Complainant had estimated that he had finished his load and started the process of taking the dock loader away from the trailer when he realised he still had one more load to fetch. He found the final load and returned to the trailer and commenced his reverse approach. All parties accept that the Complainant forgot that he had interfered with the height of the dock leveller and that in consequence of this, the rear of his order picker fell into the one foot gap he had created between the trailer and the dock loader. I would not consider that Complainant’s actions at this point to have constituted Gross Misconduct which could be considered :- “…very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship a minute longer.” per the EAT in Lennon v Bredin M160/1978 – (in considering the Section 8 exemption under the Minimum Notice Act of 1973). The Complainant has always stated that this accident arose as a result of his mistake and error. To his credit he owned up to this mistake from the outset. He quite simply forgot that he had re-adjusted the Dock leveller and thereby caused the accident. There was nothing intentional or wilful in his actions. It was the post-accident actions of the Complainant that caused his Employer to be particularly concerned. I fully accept that this is a workplace that must operate to the highest standards of care. At all times there are Operatives using mechanical vehicles for the movement of goods up and down this warehouse. Goods must be positioned and delivered with precision so as to avoid spillage, overload and accidents. Vehicles should be operated so as to keep a safe distance from each other, the loading bays, other machinery and other foreseeable hazards. The greatest of care is required at all times. I note that the Respondent has annual training days to ensure that all of the Employees are kept up to date on the health and safety requirements needed to operate within this working environment. The Respondent describes itself as having a “zero tolerance” attitude to breaches of health and safety. I was advised by Mr. D who gave evidence on behalf of the Respondent that ”zero tolerance” in this context meant that any and all incidents of breaches in Health and Safety would automatically be investigated to determine what failures occurred and what possible improvements could be made. Mr. D indicated that “zero tolerance” did not necessarily mean an automatic dismissal in the event of a breach of the Health and Safety code – as had been put forward by the Complainant’s representative when he described it as a “carte blanche” to dismiss. The Respondent was emphatic that it’s employees knew how seriously it took the issue of Health and Safety and that each employee is obliged to adopt best practice as directed orally, by sinage and in training. It is the Respondent’s case that the instant the Complainant realised that a workplace accident had happened, that his training was such that he should have automatically notified his Superiors of this fact. The Complainant did not immediately inform his Supervisor, and instead attempted to fix the situation himself. In considering the wisdom of this decision, I cannot ignore the fact that the Complainant was working on his own in an unmanned loading bay. The Complainant set about jerking the Dock leveller up and down in an attempt to “bounce” the load picker free. Instead it seems he only managed to jam it in even further. The Complainant also attempted to manhandle the load from the forks. Ultimately, the Complainant was stopped from performing any further attempt to deal with the situation by the arrival of a supervisor who relieved the Complainant of his duties. All this detail was seen on CCTV footage and was not in dispute. As previously stated the Complainant has never denied that he made a serious error of judgement by allowing this accident happen in the first place. However, it seems to me that the Respondent was more alarmed at the Complainant’s behaviour post-accident wherein he tried to remedy the situation on his own and in fact put his own safety at risk. It was these actions which formed the basis for the Respondent decision maker’s decision to propel the Complainant’s actions into the category of Gross Misconduct. The Complainant’s representatives invited me to consider that this was a “real-time” reaction to what had happened and that the Complainant had instinctively sought to ameliorate the situation before reporting same. Whether the Complainant would or would not have reported this accident had he managed to un-wedge the vehicle is unknowable. I do not accept that Mr. D as disciplinarian in this process was entitled to make that assumption, and he was certainly not entitled to rely on such an assumption as some perceived dishonesty on the part of the Complainant. This is important because in the letter of dismissal he places some considerable emphasis on the Complainant having been dishonest as well as grossly negligent. I do not accept that this is a reasonable finding. Mr. D cannot rely on a lie that might arise in the future. I am also not persuaded that the Complainant was necessarily wilfully dishonest in assessing he had bounced the loader twice. He was not afforded an opportunity to revise this estimation once he had seen the footage. If he was incorrect initially it might well have been a mistake arising out of a heightened state of anxiety after this accident. Regarding the issue of the use by the Respondent of a template letter, I can understand why there might be a concern. At the very least it is seemingly disrespectful to the seriousness of the decision being made and which concerns the Complainant’s livelihood. That said, the majority of the letter deals with the Complainant’s unique circumstances and it is only in the final paragraphs that it becomes apparent that a template has been used as a matter of expediency. This is a very difficult case. The Complainant has had a most unfortunate accident in a workplace that does not easily tolerate such mistakes. In an instinctive reaction to his predicament the Complainant sought to remedy the situation which actions were interpreted by his employer as being in flagrant disregard for his own safety and in breach of all the Health and Safety protocol. I cannot find that the procedural flaws in this decision making process, as highlighted by the Complainant’s representative, diminishes the fact that the Complainant’s actions were dangerous and ill-conceived such that the Respondent could not be absolutely sure that the Complainant understood the importance of Health and Safety within the workplace. The Complainant was negligent. I note that the Complainant was allowed to stay in the workplace pending the conclusion of his Disciplinary process but that he was not allowed to operate machinery and I accept the Respondent’s contention that all operatives need to be able to operate machinery safely and there is no role within the workforce for persons not allowed to operate machinery. No other sanction was therefore suitable. In the circumstances, I find that the loss of trust in the Complainant is justified and in all the circumstances the decision to dismiss is reasonable one. I do not however find that the conduct giving rise to the dismissal is gross misconduct such that denies this Employee his entitlement to Minimum Notice.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the Complainant’s claim under the Unfair Dismissals Acts fails. I find that the Complainant was entitled to be given Notice of the termination of his employment and that the Complainant should now be paid in lieu based on a start date of 7th of July 2005 and a termination date of the 7th of June 2017. The Complainant’s gross weekly wage was €800.00 – as agreed between the parties. |
Dated: 05/04/18
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Key Words:
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