ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009486
A general operative
A logistics company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 16/05/2018
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly BL
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Summary of Complainant’s Case:
The Complainant commenced his employment as a Warehouse Operative with the Respondent on 8th October 2007. The Complainant’s contract of employment is dated 8th October 2007.
The Complainant’s employment was subject to a probation period of six months and, by letter dated 8th May 2009, the Complainant was informed that he had successfully completed this probation period. The Complainant earned approximately €730 per week. This is an historical rate of pay which is, it is submitted, higher than the rate of pay that might be expected by more recent recruits.
The Respondent purported to dismiss the Complainant for gross misconduct on 13th April 2017, in circumstances where the Respondent had recently received a notification from the Personal Injuries Assessment Board (PIAB) that the Complainant had lodged a personal injury claim in respect of a workplace accident. It is submitted that the Complainant’s dismissal amounts to an unfair dismissal under s.6(2)(c) of the Unfair Dismissals Act, as it resulted wholly or mainly from his having initiated civil proceedings against the Respondent. Further or in the alternative, it is submitted that the procedure adopted by the Respondent to dismiss the Complainant was an unfair procedure.
By letter dated 20th March 2017, the PIAB notified the Respondent that the Complainant had lodged a personal injury claim in respect of a workplace accident. The accident had occurred some six months before, on 23rd September 2016, when a grid sign fell on to the Complainant’s right shoulder while he was scanning a pallet in the Respondent’s warehouse. As evidenced by the “Received” stamp on the PIAB letter, it was received by the Respondent on Thursday, 23rd March 2017. Within a day of receiving the PIAB notification, a letter, dated 24th March 2017, was prepared on behalf of the Respondent by Ms.E Human Resources Generalist. The letter notified the Complainant that he was to be “suspended with full pay with immediate effect pending an investigation into an allegation of Gross Misconduct arising from a recent lodgement (sic) of a 3rd personal injury claim against the Company” and that he was required to attend an investigative meeting under the Respondent’s formal disciplinary procedure on Wednesday, 29th March 2017, to discuss the allegation. There was no explanation as to why suspension with pay had been considered a necessary first step and/or why the formal, rather than the informal, disciplinary procedure was being used.
This letter was handed to the Complainant on the morning of Sunday, 26th March 2017, by Mr C, the Shift Manager. Mr.C informed the Complainant that he was being suspended with full pay pending an investigation into his level of accidents and personal injury claims. He also informed the Complainant that the Respondent had a duty of care to all its employees and that it needed to be confident that the Complainant was not putting himself or others at risk. It is unclear who instructed or authorised Mr.C to make these statements; the statements were at odds with what was contained in the letter, which made no reference to the Complainant’s “level of accidents” or the “health and safety risk” that he purportedly posed to himself or others.
The Complainant had to wait until the following day – Monday, 27th March 2017 – before he could begin the process of seeking a trade union representative to represent him at the investigative meeting. The meeting was now only two days away. Mr A (SIPTU), who also worked for the Respondent, agreed to represent the Complainant.
On Wednesday, 29th March 2017, the Complainant, accompanied by Mr.A, attended the investigative meeting which was conducted by Mr B, Warehouse Team Manager. The meeting took approximately 1 hour. Unusually, the designated note-taker for the meeting was not a member of the Human Resources team but rather a second Warehouse Team Manager, Mr S. It is submitted that this created an intimidating atmosphere for the Complainant.
During the meeting, the Complainant was left in no doubt that the investigation had been precipitated by his initiation of civil proceedings against the Respondent. In response to the Complainant’s request for clarification on the gross misconduct charge, Mr.B read out the letter which referred to an allegation of gross misconduct arising out of the Complainant’s lodgement of a third personal injury claim.
It became clear to the Complainant that Mr.B intended to investigate his three personal injury claims. When the Complainant queried why the current personal injury claim was being investigated some six months after the accident (Notes, p.1) – and, at a later stage, why the two earlier personal injury claims were being investigated when one of them had already been settled. Mr.B indicated that the Respondent was concerned about the “number of accidents”. It is submitted that this response was not convincing in circumstances where the Respondent had already had ample time to investigate the number of accidents but had taken no steps to do so until after the Complainant had lodged a third personal injury claim.
It also became clear to the Complainant that he was now facing an additional allegation of having lodged false personal injury claims for monetary gain and that Mr.B had already formed a view that he was guilty as alleged. During the meeting, Mr.B indicated that he would be looking into whether the Complainant’s personal injury claims had been genuine or “orchestrated for monetary reasons”. Mr.B expressed the view that it was not “normal to have so many claims” and that having three claims against the Respondent was “excessive”, referring to the fact that the Respondent was self-insured. Mr.A noted that the Respondent’s insurance status was not the Complainant’s concern. Asserting that there was a lot of people who worked for the Respondent for a long time and had no claims, Mr.B asked the Complainant whether he thought it was “suspicious” that he had made three claims. Towards the end of the meeting, Mr.B indicated that he was not saying that the most recent accident had not been genuine but that it “could be seen as an opportunity to put in a claim” and asked the Complainant whether there would be more claims. It is submitted that the Complainant was not made aware of this allegation until he arrived at the investigation meeting.
The Complainant, with the support of Mr.A, made several points during the meeting. The Complainant accepted that while there was some danger in the workplace it was not really dangerous. He noted, however, that while defective trailers were reported and photographed, they still came in. He also noted that while he was trained in observation, it was not always possible to observe defects in the trailers and that more responsibility should be placed on the suppliers and trailer owners. Mr.A noted that there was medical evidence to support each of the Complainant’s personal injury claims. He also noted that it would have taken a lot to orchestrate the most recent accident and that if there had been CCTV footage it would have proved whether the accident had been orchestrated or not. While there was a CCTV camera in the location where the accident had occurred, the Respondent did not have any CCTV footage of the accident.
A follow-up meeting was initially scheduled for Friday, 31st March 2017, but rescheduled to Monday, 3rd April 2017. As with the previous meeting, the follow-up meeting was conducted by Mr.B, notes were taken and the Complainant attended with Mr.A. To the best of the Complainant’s recollection, this meeting took longer than the previous investigative meeting.
The Complainant requested that his solicitor be permitted to attend and that any further questions be put through his solicitor, but these requests were refused on the ground that this was only an investigation and not a “disciplinary”. The Complainant indicated that he would not answer any questions on the accident which had occurred in 2016 as a solicitor had been appointed. During the meeting, Mr.B referred to various documents of which the Complainant did not have prior sight or warning. These documents included accident and incident reports, a Wiz report, the Complainant’s roster, a breakdown of the Complainant’s sick pay and accident pay, and the Complainant’s disciplinary and appeal history. It is submitted that this deprived the Complainant of an opportunity of considering the documentation before being required to respond to Mr.B’s allegations.
Mr.B outlined the three accidents which had resulted in the Complainant’s personal injury claims and several incidents which had been reported by the Complainant over the years. Mr.B contrived to identify a pattern in the timing of the personal injury claims – indicating that there was exactly two years between all of them – and asked the Complainant “do you not think this is suspicious that you only claim on these particular ones?” It is submitted that the suggestion that the Complainant was being selective about which accidents to pursue as a personal injury claim was highly prejudicial. Mr.B had no regard to the fact that the Complainant was contractually obliged to report any accidents that occurred in the workplace or that the number of reports was indicative of the Complainant’s level of diligence in complying with his health and safety training.
Mr.B proceeded to consider the Complainant’s accident and sick pay record and again, contriving to identify a pattern, asked the Complainant “do you not think it’s suspicious that you have absence for one or other year on year?”. The Complainant noted that “if you’re sick, you’re sick”. The Complainant also noted that if he had an accident the Respondent required him to use sick pay and, as a result, he had come to work sick so as not to lose pay. The Complainant queried whether Mr.B had looked into the reasons for the sick leave and Mr.B confirmed that these were in the Wiz Report. Regarding the 2016 accident, the Complainant also indicated that he had been happy to come back to work once the doctor had permitted him to do so. It would appear from the investigation report that Mr.B did not have adequate regard to these points.
Mr.B also noted that doubt had been cast over the Complainant’s recent claim when he had presided over the Complainant’s appeal against a decision to not pay him accident pay.
Mr.A queried why there was no CCTV footage when there was a camera in the area where the accident had occurred. Mr.A also noted that the Complainant would not have been aware that there was no CCTV footage and “would have been a fool saying that [the accident] happened if it didn’t”. It would appear from the investigation report that Mr.B did not fully engage with or follow up on this point.
Mr.B also highlighted that the Doctor had expressed surprised when the Complainant presented with pins and needles in his hand. Reading from a medical report, dated 29th September 2016, Mr.B noted that the Doctor had indicated that he was “surprised that ….. reports pins and needles in his hand as the nerves that supply the fingers and hands are situated underneath the shoulders and should not have been impacted”. A copy of this report appears at Section 8 page 3 of the Complainant’s Booklet. The Complainant asked Mr.B to check the next medical report, dated 25th October 2016, as he (the Complainant) had been sent for an MRI scan after the first report and the issue with his hand had showed up on the scan and the Doctor would not let him return to work. Mr.A also noted that the Doctor had previously made mistake. It would appear from the investigation report that Mr.B did not fully engage with or follow up on these points either.
Towards the end of the meeting, Mr.B noted that the Complainant had only lodged two (written) health and safety concerns and asked him why he had only reported these. The Complainant expressed the view that if he reported a concern to his manager that it should be enough. It is submitted that Mr.B was incorrect in this assertion and had he sought out the information, which he ought to have done, he would have discovered that the Complainant had lodged at least five written health and safety concerns.
Mr.B sent a copy of his investigation report to the Complainant with a covering letter, dated 7th April 2017. Both documents referred to the fact that the Complainant had been suspended with pay pending an investigation into alleged gross misconduct arising from the recent lodgement of a third personal injury claim against the Respondent.
In his investigation report, Mr.B suggested that, having lodged a further personal injury claim against the Respondent, the Complainant was “believed to be a potential health and safety risk on site”. It is submitted that this was the first time that this allegation had been formally put to the Complainant, having not been referred to in any of the correspondence relating to the investigation or expressly stated in either of the investigation meetings.
Mr.B’s report purported to summarise the evidence gathered during the two investigative meetings. It is submitted, however, that there were various gaps in the summary and/or evidence:
• Referring to the Complainant’s statement that there were other members of staff who had made claims but had not been suspended, Mr.B neither confirmed nor denied that this was the case, suggesting that he had not followed up on this matter.
• Referring to staff training in observation, Mr.B did not address the Complainant’s point that it was not always s possible to spot defects in trailers.
• Referring to the weight and height of the grid sign involved in the accident, Mr.B did not refer to the Complainant’s explanation that he could not remember if he had been crouched when the sign fell.
• Referring to the Doctor’s report, dated 29th September 2016, Mr.B did not refer to the Doctor’s second report, even though he had been alerted to this by the Complainant during the investigative meetings, suggesting that he had not followed up on this matter.
• Mr.B made no reference to the fact that there was no CCTV footage of the accident even though there was a CCTV camera in the location where the accident had occurred. This was in spite of the fact that the point had been raised on several occasions by Mr.A during the investigative meetings.
•Mr.B made no reference to the point raised by Mr.A that the doctor had previously made mistakes in relation to his diagnoses.
It is submitted that Mr.B’s incomplete account of the evidence – and failure to address and/or follow up on matters raised by the Complainant and his representative – displays a tendency on the part of Mr.B to seek evidence in support of the theory that the Complainant was guilty as alleged rather than to seek out all relevant evidence.
Mr.B also purported to make several findings on issues which had not been put to the Complainant during the investigation meetings. Mr.B indicated that he found it strange that the Complainant should ask for clarification on why he had been suspended with pay and the nature of the allegations against him. Mr.B noted that he had contacted Mr.C after the initial investigation meeting to ascertain what he had told the Complainant on the day that he had been suspended. Referring to an email sent to Human Resources on 26th March 2017, Mr.C indicated that he had told the Complainant that “He was being suspended on pay pending an investigation into his level of accidents and personal injury claims” and that “We have a duty of care to all our employees and we need to be satisfied that he is not putting himself or others around him at risk.” In circumstances where Mr.C’s statements did not correspond to what was stated in the letter notifying the Complainant of his suspension, it is submitted that it was supremely reasonable for the Complainant to ask for clarification on the precise nature of the charges. In any event, Mr.C’s statement was never put to the Complainant and, as a result, he was deprived of any opportunity to comment on it.
Mr.B also indicated that he found the Complainant to have “an extremely relaxed attitude towards the investigation” and to be “very blasé given the serious of the investigation”. These were highly prejudicial statements to make in relation to the Complainant in circumstances where the Complainant was never asked about his state of mind. Nor, indeed, was Mr.B’s perception of the Complainant’s attitude put to the Complainant in either investigative meeting for comment.
Mr.B also purported to make findings in relation to the merits of the Complainant’s three personal injury claims, even though the first claim (2010) had been settled, the second claim (2013) was the subject of settlement negotiations and the third claim (2016) was the subject of legal proceedings. Mr.B asserted that the Complainant had been the “main contributing factor” in all of the accidents. It is submitted that this was unsupported by any independent evidence or, indeed, the Respondent’s own accident reports, which did not attribute any fault to the Complainant in respect of the 2010 accident and identified the Complainant’s actions as one of a number of unweighted “contributory factors” in relation to 2013 accident. It is also submitted that it was highly inappropriate in circumstances where the appropriate time to dispute liability in relation to the first and second claims would have been during the settlement negotiations and, in relation to the third claim, as part of the Respondent’s submissions to the PIAB.
Mr.B purported to draw inferences from the Complainant’s miscalculation of the weight and height of the grid sign, indicating that “these two points are highly concerning as [the Complainant] is basing a legal action on estimated and overinflated details”. Referring to a statement made by the Complainant to Ms C Health and Safety Specialist, on 25th September 2016, that he had never had any injuries to his arm or shoulder before the accident, Mr.B noted that “this could be looked upon as a genuine error on [the Complainant’s] behalf but taking the other discrepancies into consideration regarding the exaggerated weight and height of the sign I believe this again was originally intended to give misleading information for his future claim.” It is submitted that Mr.B did not have due regard to the fact that the Complainant had immediately corrected the statement made to Ms Cox and could not, therefore, have hoped to mislead her in any way.
Mr.B purported to find that the Complainant “had used the sick and accident pay procedures… to maximise his absences from work, to ensure that he is in receipt of payment for absences and to keep himself out of scope of the absence control policy”. Mr.B did not refer to the fact that there had been a recorded reason for each of the Complainant’s sick leave absences or that the Respondent had, on occasion, required the Complainant to use sick pay instead of accident pay.
Mr.B also purported to find that the Complainant’s “present claim regarding the alleged fallen sign to be falsified” and that it was “highly likely on the balance of probabilities that [the Complainant] will have further accidents to keep a consistent flow of income through the monetary gain in a personal injury claim as has been his patterns since he first commenced in 2010.” It is submitted that these purported findings were not supported by any independent evidence and the Complainant refutes them in their entirety.
By letter dated 10th April 2017, the Complainant was notified that, further to the investigation into his lodgement of a third personal injury claim, he was requested to attend a formal disciplinary meeting the following day, Tuesday, 11th April 2017. The letter indicated that the Complainant was entitled to be represented by a trade union representative or bring along a colleague of his choice as a witness. The letter also indicated that the “issue may warrant a disciplinary sanction being taken against you up to and including dismissal”. It is submitted that it was highly unfair to give the Complainant less than one day’s notice to prepare his defence and arrange for a representative or witness to attend.
On Tuesday, 11th April 2017, the Complainant, accompanied by Mr.A, attended the disciplinary hearing. The hearing was conducted by Mr P Acting Operations Manager, and notes were taken by Ms M, Human Resources Administrator.
The Complainant requested that his solicitor be allowed to attend the meeting. Mr P refused this request on the basis that it was an “inside investigation”. Mr.A noted that the Mr.B had concluded that the Complainant had been causing the accidents and indicated that this had made it a legal matter. Mr P reiterated that it was just a “company matter”.
In response to a question from Mr. P, the Complainant confirmed that it was a safe place to work and that he had been well-trained.
From the start of the hearing, Mr. P’s line of questioning suggested that he had already made up his mind regarding the Complainant’s guilt. Mr. P asked the Complainant “[h]ow likely are you to have another accident” and stated that “a lot of [the accidents] are down to what you were doing” and “how are we going to be confident that you won’t have more?”. The Complainant, very reasonably, responded that accidents happen, while Mr.A noted that no-one could say if an accident would happen in the future. At a later stage, Mr. P referred to the company values and asked the Complainant whether he thought making a claim against the Respondent constituted “integrity”. Mr. P also asked the Complainant whether he (the Complainant) would employ someone who had injured himself three times and claimed off the company. Mr.A advised the Complainant not to answer this question.
Referring to the five “accidents” which had been identified in Mr.B’s investigation report, the Complainant noted that he had reported some of these as “incidents” not “accidents” and that he reported anything that happened just as he had been told to do by the Respondent. Notwithstanding this clarification, Mr. P proceeded to query why the Complainant had only claimed for three out of the five “accidents”. The Complainant quite reasonably responded that the injuries he had suffered in two of the incidents were not serious. Mr. P referred to the Complainant’s description of the weight and height of the grid sign. Mr.A noted that the Complainant had made it clear that this had just been a guess.
Mr. P asserted that it was the Complainant’s lack of observation that had caused the accident, that he had known that and that he had still claimed. The Complainant noted that the first claim had been settled, that he had never seen the accident reports – he had been told that he would need a solicitor in order to get it – and could not know whether he had been found to be at fault. He also noted that the first accident had been caused by a part breaking under his machine and this was recorded in the accident report form. Mr.A reiterated that suppliers’ trailers should be looked at because of the condition that they were in. Mr. P asserted that the recent accident could have been avoided if the Complainant had looked around, noting that Mr D had stated in his letter that he could not knock the sign down. Mr.A noted that the accident had occurred under a CCTV camera and that he could not understand how it had not been caught by it. He also noted that this had not been referred to in Mr.B’s investigation report.
Mr. P asserted that the Complainant had, since 2010, used all his sick pay, accident pay and annual leave but that the Complainant had stayed under the radar. It is submitted that Mr. P unfairly mischaracterised the fact that the Complainant had stayed within his sick pay, accident pay and annual leave allowances and did not have sufficient regard to the fact that all of the Complainant’s absences could be accounted for.
The Complainant and Mr.A identified a number of points which they had made during the investigative meetings which had not been taken into account by Mr.B:
• Mr.B had not referred to the fact that the accident had occurred under a CCTV camera which was subsequently found not to be working.
• Mr.B had referred to the self-insured status of the Respondent but had not referred to Mr.A’s point that this was not the Complainant’s concern.
• Mr.B had not referred to Mr.A’s point that The Doctor had previously made mistakes, namely sending three members of staff back to work with broken bones. (Notes, p.4)
• Mr.B had not referred to the Complainant’s point that, after sending him (the Complainant) for an MRI scan, the doctor would not let him go back to work. (Notes, p.4)
The Complainant also showed Mr. P a part of the investigation report which indicated that he had told the Health and Safety Specialist, that he had never had an injury to his shoulder. The Complainant confirmed that this was not correct as he had provided a corrective to her in the same meeting.
Disciplinary Meeting Outcome – Decision to Dismiss:
By letter, dated 13th April 2017 – and referring to “Alleged Gross Misconduct arising from recent lodgement of 3rd personal injury claim against the Company” – Mr. P informed the Complainant that he had concluded that the Complainant was guilty of gross misconduct and that the Complainant’s contract of employment would be terminated with immediate effect. The letter also indicated that the Complainant had a right of appeal. Mr. P made a number of remarks before setting out his conclusions. Mr. P asserted that the Complainant had been well-trained in all aspects of his job, both skill and Health and Safety, and that he continued to have accidents which could have been avoided if he had followed his training. It is submitted that this assertion was not supported by the Respondent’s own accident reports or any independent evidence. Mr. P also asserted that the Complainant had then, depending on the severity of the injury, made a decision to lodge a personal injury claim against the Respondent. It is submitted that this assertion was not supported by any evidence and that Mr. P failed to have regard to the Complainant’s submission that some of the events under consideration were not “accidents” but rather “incidents” which the Complainant had reported to the Respondent in line with his training.
Referring to the Complainant’s sick pay and accident pay record, Mr. P asserted that the Complainant was “consciously extracting as much monetary benefit from his terms and conditions … on top of any monetary gain he may receive through lodging personal injury claims against the Company”. It is submitted that this assertion was not supported by any independent evidence and that, in any event, the question of whether or not a personal injury claim was genuine was a matter for the courts and not the other party to the action to determine.
In addition, Mr. P referred to points made by the Complainant and Mr.A around items which had been discussed during the investigation carried out by Mr.B but were not referred to in the subsequent report. Referring to the points made by Mr.A in relation to the lack of CCTV footage, Mr. P indicated that this was a “moot” point as Mr.B had not disputed the fact that the accident had taken place but merely pointed out discrepancies regarding the weight and height of the sign. It is submitted that had Mr. P properly engaged with the point being made, as he ought to have done, he would have realised that it was highly relevant that there was a CCTV camera in the location where the accident had occurred but no CCTV footage. The presence of a CCTV camera would have deterred members of staff from fabricating an accident or, indeed, acting in a way that was contrary to their health and safety training lest it be caught on camera. In addition, CCTV footage would have been vital evidence to show whether or not the accident had been fabricated or whether the accident had occurred because of a breach of health and safety.
Mr. P also referred to points made by the Complainant and Mr.A in relation to The Doctor’s medical reported. Mr. P indicated that the Doctor was an independent entity and that his report merely outlined the Complainant’s condition when he presented himself to him. It is submitted that had Mr. P properly engaged with the point being made, as he ought to have done, he would have realised that Mr.B had only referred The Doctor’s first report, which cast a doubt over the symptoms experienced by the Complainant, and did not refer to The Doctor’s second report which had been prepared following an MRI scan which had established the source of the problem.
By letter, dated 19th April 2017, the Complainant confirmed that he wished to appeal the decision to terminate his contract of employment.
On Wednesday, 26th April 2017, the Complainant was informed that his appeal was to be heard that day. On 2nd May 2017, the Complainant indicated that he wanted Mr.A to continue to represent him at the appeal hearing. The Complainant was told that the appeal hearing would have to be rescheduled until Friday, 5th May 2017, to facilitate this. On Thursday, 4th May 2017, Ms S Human Resources Administrator, contacted the Complainant to confirm his attendance the following day. The Complainant again requested that Mr.A be permitted to attend the meeting. The Complainant was told that the meeting would need to be rescheduled for a date after 16th May 2017 to facilitate this the General Manager, who would hear the appeal was on annual leave until then. Given that the Complainant had received his last payment and P45, he knew that he could not wait until 16th May and conceded to the matter going ahead the following day. The Complainant was advised that an an external SIPTU representative, and another SIPTU shop steward would be in attendance. The Complainant was also advised that he should come in half an hour before the meeting to allow him “sufficient time” to discuss the matter with his representative. It is submitted that half an hour was not sufficient time to bring a representative who was new to the Complainant’s case up to speed.
The respondent made it very difficult for the complainant when he tried to secure the representation he wanted at the hearing.
On Friday, 5th May 2017, the Complainant spoke to his representative for half an hour in the car park before the appeal hearing was due to commence. The Complainant told him how the Respondent had made it difficult for Mr.A to represent him at the appeal hearing. He advised the Complainant that he should not proceed with the appeal in those circumstances. The Complainant subsequently informed the respondent that he did not wish to proceed without Mr.A and his solicitor being present. The Respondent indicated that it was not the practise or policy of the Respondent to have a solicitor present during internal meetings and that the appeal would have to be rescheduled until after 16th May. The respondent attempted to contact the Human Resources Manager, to see whether the Complainant’s request could be facilitated.
By letter, dated 5th May 2017, it was confirmed that the Complainant’s solicitor could attend the appeal hearing if the Complainant satisfied three conditions, namely, that the Complainant provided a compelling reason to allow it, SIPTU confirmed in writing that it had withdrawn from the case, and the Complainant arranged an external venue close to the site to conduct the meeting. It is submitted that these conditions were unreasonable and displayed an attempt by the Respondent to frustrate the Complainant’s wish to have his solicitor present at the appeal hearing. (The letter also summarises the manner in which the appeal hearing had been rescheduled on several occasions. It is submitted that this summary was inaccurate and mischaracterised what had actually happened).
The Complainant, accompanied by his solicitor, attended the appeal hearing on Thursday, 8th June 2017. The appeal was heard by the General Manager, and notes were taken the Human Resources Generalist. The appeal hearing was incredibly short, taking approximately 10 minutes. Despite a commitment to do so and several follow-up requests by the Complainant’s solicitor, the Respondent did not provide the Complainant with a copy of the notes of the meeting until two days before the first day of the WRC hearing i.e. Monday, 12th February 2018.
It is submitted that it was entirely inappropriate and unfair for the General Manager to hear the Complainant’s appeal as he had previously dismissed the Complainant’s appeal against a decision not to award him accident pay during his absence and, in the course of doing so, had expressed disbelief regarding the Complainant’s version of how the accident had happened. In his letter, dated 28th November 2016, he stated:
“I do not understand how this sign could have fallen off as I could not get it to fall off when I intentionally tried. I have come to the conclusion that I do not believe this sign could have fallen as claimed by you.”
Towards the end of the short hearing, the General Manager indicated that the bottom line was that there were five accidents in six years, that “we” needed to protect everyone in the company, that he did not know of others with the same level of accidents and that he was there to decide on risk.
By letter, dated 22nd June 2017, the Complainant was informed that he had not been successful in his appeal and that the decision to terminate his contract of employment had been the correct one.
Summary of Respondent’s Case:
The complainant was employed as a warehouse Operative in October 2007. His first accident took place in 2010, the complainant was driving his MHE (Manual Handling Equipment, an electric forklift) onto the trailer of a lorry. The trailer was faulty and a piece of timber snapped causing the complainant to be thrown forward and suffer injury, there was no witnesses to this incident. A personal injury claim was brought against the respondent. The respondent did not accept liability and subsequently the respondent was released from the claim and received €10,000 towards our legal costs. We understand that this claim was settled in early 2013, with the owner of the lorry company on which the accident occurred. As a result of this accident the complainant was absent for 66 working days during which time he received full pay as per the respondent's policy’s'.
In December 2012 the complainant reported another workplace accident. He alleged that a shelf on a cage became stuck and while attempting to dislodge it he felt pain in his right palm, there were no witnesses to this incident. The Supervisor reported that the complainant was not following his manual handling training at the time of the accident. As a result of this accident the complainant was absent for 5 working days during which time he received full pay as per the respondent's policy.
The third accident was reported in September 2013; similar to the 2010 accident the complainant drove into a dip at the back of a lorry. The accident report cited the complainant's carelessness and method of working as contributing factors as well as the faulty equipment of the lorry. Again, there were no witnesses to this incident; statements taken from the complainant's supervisor, and colleagues, refer to the complainant changing his story regarding the incident. The respondent was named as a party to a claim but subsequently removed. We do not know what the outcome of this claim was. As a result of this accident the complainant was absent for 6 working days during which time he received full pay as per the respondent's policy. This incident was the subject of a disciplinary investigation. The complainant received a written warning for breaches of health and safety requirements. This was reduced on appeal to a verbal warning.
A further accident was reported in September 2014, again, there were no witnesses to the incident. The complainant reported that while lifting a lever he felt a pain in his shoulder. The accident report noted that the complainant's method of working and using too much force had been contributing factors in the incident. No claim ensued and no working days were lost.
In September 2016 the complainant reported another workplace accident. The complainant reported that he was removing boxes from a pallet on the warehouse floor (this process is referred to as 'breaking down'). The complainant is fully trained in the process. After removing the plastic, which was wrapped around the pallet and the cardboard corners on the pallet the complainant, he was taking the plastic and cardboard to the rubbish bin. By means unknown to the respondent the complainant, somehow dislodged a plastic sign that was approximately 2'8" above his head, the sign allegedly, landed on the complainant's shoulder. Unlike previous incidents' the complainant named two colleagues as witnesses to this incident.
The sole contributing factor to this incident was the complainant's own method of working. The complainant was not wearing his full Personal Protective Equipment at the time of the incident and no issues were found in the work area or in the general conditions. Both of the complainant's colleagues who had been named as witnesses were interviewed, both of them denied witnessing any incident or accident.
The accident review panel, (which is made up of a SIPTU representative, an operations manager and a health and safety officer) decided not to pay the complainant during this period of absence. As per the policy the complainant appealed the decision to not pay him accident pay. The General Manager conducted the appeal, as part of his considerations The General Manager attempted to recreate the incident. Despite several attempts no one was able to replicate the accident that was reported.
The As a result of this incident the complainant was absent for 28 working days and another personal injury claim was lodged. That claim was settled for €18,438.35 in July 2017.
Following on the fifth accident and the third personal injury claim in five years the complainants Health and Safety record was reviewed. It was of serious concern to the respondent that any employee could be involved in so many accidents. Manual handling is central to the Warehouse Operative role. There are approximately 350 warehouse operatives all carrying out manual handling duties on a daily basis, as such strong emphasis is placed on safe manual handling techniques and regular training is provided. In addition the depot has a robust Health and Safety reporting structure which comprises of layers of reporting from the formal Accident / Incident Reports; Safety Net concerns which are driven by employees whereby they are encouraged to formally raise any issues they become aware of including unsafe acts and or conditions within the warehouse; and manager supervision of task including an opportunity for operatives to reporting concerns directly to a manager effectively allowing them to raise informal ad hoc queries for immediate resolution.
In the context of the working environment and having reviewed the complainant's accident history it became apparent that the complainant displayed an inordinately high level of accidents and subsequent claims. No other operative has displayed the same level of accidents and claims as the complainant. This was despite the complainant having undertaken the same health and safety training and refresher training as his colleagues. As such the Company had no choice but to consider the potential health and safety risk the complainant posed on the site both to himself and those working around him.
Following the review of his accident and claims a serious concern was raised and the matter was referred to investigation. For his safety and the safety of his colleagues he was suspended with pay on Sunday 26th March pending an investigation for alleged Gross Misconduct and invited to attend an investigation meeting under the Company’s formal disciplinary procedure to discuss the allegation.
The investigation meeting took place on the 29th of March 2017 with the Warehouse Team Manager It was necessary to reconvene the meeting on the 3rd of April when more information came to light relevant to the investigation. The complainant was represented by SIPTU at both meetings.
The Warehouse Team Manager considered the complainants accident and claims during the course of his investigation and while looking into the accident history information came to light regarding the complainant’s accident / sick pay patterns dating back to 2008 and a concern was raised relating to details of a doctor’s report and a letter from the complainant’s solicitor. These were discussed at the reconvened meeting on the 3rd of April 2017.
The Warehouse Team Manager issued a detailed investigation report on the 7th of April 2017.
During the first meeting the complainant was asked if he understood the allegation and he queried the “Gross Misconduct” element of the charge. The Warehouse Team Manager outlined he had been suspended on full pay for an investigation into his levels of reported accidents and personal injury claims. The Warehouse Team Manager explained that the Company has a duty of care to all employees and needed to be confident that the complainant was not putting himself or others around him at risk. The Warehouse Team Manager went on to explain to the complainant that the scope of the investigation was not merely the most recent accident but would include all of his accident history. The Warehouse Team Manager put to the complainant that he had sustained a number of accidents and had lodged three personal injury claims as a result of these accidents that could be deemed as being excessive in the short time period since 2010. The complainants view was that other people had had accidents and not been suspended. The complainant was asked if he thought it was reasonable to look into his high level of accidents and claims and if his claims were lodged for monetary gain. The complainant did not answer this question.
The complainant was asked if he thought that the depot was a dangerous place to work and he responded “There is some danger but not really dangerous”.
The complainant was asked if there were any changes he would make to health and safety on site and he raised one concern in relation to Goods In trailers. The Warehouse Team Manager explained that there was a reporting process in relation to these trailers and reminded the complainant that all warehouse staff were trained on observation to prevent issues such as the one he mentioned.
The Warehouse Team Manager pointed out that there are a lot of people working in the same role as the complainant, a number of whom have been in the role for 15 years or more, and a large majority of them have never had an accident on site and of those few who have, only a small percentage had lodged a claim following an accident. The complainant did not think his 5 accidents 3 of which resulted in personal injury claims were excessive. It was his view that he was not the only person to have that number of claims. The Warehouse Team Manager went on to inform the complainant that the Company are obliged to consider all of the complainant's accidents in the context of the concerns around his own safety that they raise. The key concern for the Company is the amount of accidents he has had which would suggest that it is highly likely that he were to have further accidents.
The complainant was questioned about his training and if in his view he had received proper training. He responded that he had but there were some parts missing, he went on to cite one issue that related to supplier’s trailers and how their trailers arrive into the depot.
The Warehouse Team Manager pointed out that the pallet of stock involved in his recent accident / claim comes into the depot in the same manner every day and no other operative has ever reported an incident or been involved in an accident as a result of it. The complainant’s shop steward stated that it would have taken a lot to orchestrate the accident. The Warehouse Team Manager expressed his view that it could have been taken as an opportunity to put in a claim.
The meeting was adjourned and reconvened on the 3rd of April 2017. The complainant requested that his solicitor attend this meeting and he was informed that as this was an investigative meeting only and its purpose was to establish fact. The complainant agreed to continue but stated he will not answer questions on the 2016 claim as there was a solicitor appointed to the claim. The Warehouse Team Manager informed the complainant that he would not be focusing on this accident exclusively but would be discussing all accidents pertaining to him and as such he may be asked to answer questions in relation to it.
The Warehouse Team Manager reviewed the five accidents that had occurred on site since 2010 and pointed out that the accidents the complainant had claimed for were almost exactly two years apart (On review The Warehouse Team Manager corrected himself as the dates of the accidents/claims were three years apart not two as stated in the meeting. This was an oversight but does not change the view that the complainant’s claims at three years apart still raise the same suspicions). The Warehouse Team Manager questioned the complainant about this and stated that this may be considered to be a pattern and the complainant’s response was that it “just happened”.
The Warehouse Team Manager reviewed the complainant’s absence patters, his paid sick leave and his paid time off as a result of the alleged accidents he had sustained on site.
A synopsis of his sick and accident pay follows -
• 2016 to 2017 – No sick pay but used accident pay.
• 2015 to 2016 – No accident pay but sick pay used.
• 2014 to 2015 – No accident pay but sick pay used.
• 2013 to 2014 – Mostly sick pay covering 52 days and 14 days for an accident.
• 2012 to 2013 – Mostly sick pay covering 54 days and 5 days for an accident.
• 2011 to 2012 – No accident pay but sick pay used.
• 2010 to 2011 – Accident pay and sick pay used covering 66 days due to accident.
• 2009 to 2010 – No sick pay and no accident pay used.
• 2008 to 2009 – No accident pay but sick pay used.
The Warehouse Team Manager observed that the complainant used a large proportion of his total allowance for his accident and sick pay year on year starting from 2010 to present. This illustrates an extremely high level of absence, which is not evident from a superficial reading of his absence levels as absences that are related to accidents are not included in the Company’s absence control policy and as such are outside of the scope of absence management process.
The Warehouse Team Manager summarised his findings that the complainant had been absent from work either with an accident, sick or combination of both year on year that resulted in him using up a large proportion of his allocation from 2010 onwards. This is illustrated as follows –
The complainant stated that some of his absence from work was down to time he missed due to a previous accident. While this was acknowledged this to be the case on a couple of occasions over all his absence from work was down to an array of different reasons which are listed below:
• Varicose veins
• Misread roster
• Back pain
• Stomach problem
• Back pain
• Child had chicken pox
• Wife unwell
The Warehouse Team Manager reviewed the medical reports from the Company Doctor and the complainant’s solicitor. In his Investigation Report he commented that the complainant’s attitude was extremely relaxed throughout the investigation and that this was unusual considering the allegation of Gross Misconduct, particularly as the complainant himself confirmed that he understood the seriousness of the matter. When he was questioned about his extremely high level of accidents and claims his response was “other people have had claims but not suspended” and “he was not the only person to have that number of claims”.
An important fact established while looking into the complainant’s accidents that subsequently resulted in claims show that the complainant himself was one of the main contributing factors.
Observing your surroundings is a key area that is covered in all Health and Safety training on site. The training is refreshed annually. The workplace is littered with posters and signs reminding staff and visitors of importance of personal vigilance to health and safety. On the public road before entering the gates of the premises a large sign is displayed with company logo, the sign states; Safety starts here, It starts now And it starts with YOU!" All mirrors in the workplace (toilets, changing rooms etc.) have the following words printed on them; "You are looking at the person responsible for your health & safety". In short, the respondent goes to every conceivable effort to keep the workplace accident free.
The Warehouse Team Manager outlined that while looking into the complainant’s accident reports he found a discrepancy in one of his injured party statements. In a statement taken on 25th of September 2016 the complainant stated “I never had any injuries to my arm or shoulder previously”. In the same statement he then corrected this comment and referenced a previous accident he reported in which he injured the same shoulder in 2014 while removing a bar from the back of a trailer. The Warehouse Team Manager concluded “this could be looked upon as a genuine error on his behalf but taking the other discrepancies into consideration regarding the exaggerated weight and height of the sign I believe this again was originally intended to give misleading information for his future claim”.
The Warehouse Team Manager found during the course of this investigation that the complainant appeared to have used the sick and accident pay procedures available to him in order to maximise his absences from work while ensuring that he was in receipt of payment for absences while remaining out scope of the absence control policy.
The Warehouse Team Manager noted that the complainant started his employment on 9th of October 2007 and had a very low absence level up to his first accident on the 18th of June 2010 (only seven days of absence over almost three years which would be considered low). The Warehouse Team Manager commented “I believe that xxx learned from his first accident in 2010 that absence following an accident on site would result in an absence being excluded from the ACP and which in turn would keep him from triggering phases. It is from 2010 that xxx absence from work becomes a concern. His absence records show that he has only ever reached a Phase 2 on the Absence Control Policy despite using large amounts of his sick and accident allowance each year since 2010”.
The Warehouse Team Manager found evidence that would suggest the complainant’s claim relating to the alleged fallen sign to be falsified due to the complainant giving misleading information to all parties and in The Warehouse Team Manager’s finding this was done for two reasons, firstly to get time off work due to accidents and to stay out of the scope of the ACP, and secondly for monetary gain through a claim or to benefit from accident / sick pay.
The complainant himself stated that he does not believe that the workplace is unsafe. The Warehouse Team Manager noted that whilst the Company endeavour at all times to make Health and Safety a priority, it cannot legislate for individuals who do not follow their training and create risk around them. The Warehouse Team Manager found that it was highly likely on the balance of probability that the complainant would have further accidents to maintain a flow of income through the monetary gain associated with a personal injury claim as has been illustrated by his patterns since he first commenced this behaviour in 2010.
The Warehouse Team Manager referred the matter to a formal disciplinary hearing.
The complainant was invited to attend a disciplinary hearing by couriered letter dated the 10th of April 2017.
The disciplinary hearing took place on the 11th of April 2017 with the Shift Operations Manager. The complainant was represented at this meeting by SIPTU.
The Shift Operations Manager issued his findings by letter dated the 13th of April 2017 which outlined the fact that an investigation was carried out following the recent lodgement of a third personal injury claim against the Company by the complainant and went on to detail the fact that the complainant had sustained five accidents since 2010 and had lodged three personal injury claims against the Company. The Shift Operations Manager referenced the fact that on the three occasions where a claim was lodged the complainants own actions were a major contributing factor in the accidents. The Shift Operations Manager sated “In essence it was as a result of your own failings that you injured yourself and then proceeded to claim against the Company”.
The Shift Operations Manager had questioned the complaint on if he considered the depot to be a safe place to work and the complainant replied “Yes it is”, The Shift Operations Manager asked if the complainant felt well trained and he responded “Yes”.
In his outcome The Shift Operations Manager expressed his difficulty to comprehend why the complainants level of accidents was what it was considering the complainant believed that he had been well trained and considered the environment to be a safe place to work.
The Company takes its Health and Safety obligation very seriously. Employees are highly trained, all tasks are risked assessed, all employees receive annual Health and Safety refreshers, a Health and Safety committee meets regularly and all employees are encouraged to raise any potential Health and Safety risks through formal and informal routes.
The Shift Operations Manager pointed out that as an employee the complainant had a responsibility to follow his training which the Company provided. He was also responsible for his own Health and Safety under legislation. The Shift Operations Manager found that the complainant’s actions and omissions also impacted on the Health and Safety of his colleagues and that despite being well trained in all aspect of the role with specific emphasis on Health and Safety, the complainant continued to have accidents which could have been avoided if training had been properly followed. The complainant was asked during his disciplinary hearing why he had not claimed for two of the accidents and he replied that these were not serious injuries. The Shift Operations Manager found that this response indicated that the complainant assessed if there was any financial gain to be made following each accident. The Shift Operations Manager found it to be unacceptable for a Company which holds integrity as one of its core values that an employee should behave in this fashion.
The Shift Operations Manager commented on the fact that since 2010 the complainant had used a large proportion of his sick and accident pay. The Shift Operations Manager found that this pointed to the fact that the complainant was attempting to consciously extract as much monetary benefit from his terms and conditions and the local agreements in place on this site on top of any monetary gain he would receive through lodging personal injury claims against the Company. The Shift Operations Manager found that he was satisfied that the complainant was working to an agenda with its main aim to claim as much benefit and compensation from his employer.
The Shift Operations Manager addresses points at the disciplinary that while discussed at the investigative meeting were not addressed in the report as follows -
• Accident in 2016 took place under CCTV but doubt was attached to the veracity of the accident. The Warehouse Team Manager did not dispute the fact that this accident took place. He merely pointed out discrepancies regarding the weight and height of the sign which was disclosed to the doctor and to the solicitor respectively.
• The integrity of the Occupational Health Physician was also questioned as you stated that he had previously sent you back to work with a broken bone in your hand. The weight given to his medical report by the Company in this case in light of this needs to be considered. The Doctor is highly qualified and a specialist in his field. He is an independent entity and submits his expert opinion when requested to do so by the Company. His report merely outlines your condition when you presented yourself to him taking into account what may have caused your injury.
The Shift Operations Manager on reviewing the evidence before him concluded that the complainant had been seeking financial gain as a result of his own failings under Health and Safety. The Shift Operations Manager sated “With the evidence presented during our meeting, it is my view that the Company cannot be confident that you will not have any accidents in the future given your history. We have a duty of care towards you and all our other employees. Our confidence in you as a safe worker and our trust in you as an employee have been eroded beyond repair. I believe that it is highly likely that you will injure yourself or others around you again. It is our role to ensure you are not in a position to do this”.
The Shift Operations Manager’s finding was that an allegation of Gross Misconduct was founded and in line with the Company’s disciplinary procedure the complainant’s contact was terminated with immediate effect.
The complainant appealed the decision to dismiss him by letter dated 19th April 2017 (Appendix 10) and an appeal hearing was scheduled for 26th of April 2017 with the General Manager.
The appeal hearing was then rescheduled twice. On the 5th of May 2017 the complainant arrived prior to appeal hearing and requested that the meeting be re-scheduled again. The General Manager (who was due to be on annual leave on the 5th of May and changed his arrangements) and the external SIPTU rep were on site ready for the meeting to take place. The complainant had been contacted the day before by phone and had confirmed his attendance at the meeting. On the morning of the meeting the complainant informed the Company that he did not want to proceed with the meeting without his internal shop steward and his solicitor present. It was explained to the complainant that it was not practise or policy to have a solicitor present at any internal meetings however the request would be escalated to the HR Director who would consider his request for facilitation outside the internal processes.
A formal response to the complainant’s request was issued by letter later the same day by the HR Generalist. In her letter she outlined to the complainant (and copied his solicitor) that the internal procedures were clear on the fact that SIPTU is the elected representative body that represents employees on site. SIPTU had represented the complainant on the case thus far, however, being a reasonable employer the Company were willing to work outside of our normal disciplinary process on this occasion should the complainant provide a compelling reason for us to do so. The complainant and his solicitor were asked to address this matter with SIPTU up to that point were the representative body on the matter and that written confirmation from SIPTU be provided to show that they had withdrawn from this case. The complainant was informed that once the issue of having more than one representative on the case was resolved the Company would reschedule the meeting. Further the complainant was informed that the meeting could not take place on site as it is contrary to procedures and requested that a venue for the meeting local to the site was arranged to enable management to attend the meeting conveniently.
The claimant’s solicitor responded by letter dated the 10th of May 2017 and confirmed that they wished to represent the complainant at the appeal hearing.
HR responded by letter dated the 19th of May 2017 to outline that confirmation in writing from SIPTU indicating that they were withdrawing from this case had yet to be received. HR asked that this be requested from SIPTU and provisionally rescheduled the meeting for the 8th of June 2017 when all parties would be available. HR requested confirmation of venue as per previous letter.
The claimant’s solicitor responded by letter dated the 25th of May 2017 to confirm attendance at the meeting of the 8th of June 2017 and to advise that their view was that the Company were being “entirely unreasonable” in asking that the meeting be held off site.
HR responded by letter dated 1st of June 2017 and again outlined that the meeting could not happen on site as it was contrary to procedures. HR outlined the internal disciplinary procedures in respect of this being an appeal of dismissal i.e. the final stage of the internal disciplinary procedure and differentiated internal disciplinary procedures from occasions when solicitors did attend site, for example to view CCTV footage and for engineer inspections when external involvement is required. HR again noted that confirmation that SIPTU had withdrawn from the case was outstanding. HR advised that she had therefore taken the liberty to write to SIPTU separately requesting this confirmation.
On the 2nd June 2017, HR wrote to the complainant’s solicitor and confirmed the date, time and location of the appeal hearing.
The appeal hearing took place on the 8th of June 2017 with the General Manager. The complainant’s solicitor represented him at this meeting.
The General Manager issued his outcome on the 22nd of June 2017.
Subsequent to the appeal hearing all three personal injury claims were concluded. In so doing however it needs to be noted that all of the claims were concluded by way of settlement agreements specifically without prejudice and without admission of liability. As such the issue of the complainant’s contributory negligence was not determined through the personal injury claims process and The General Manager in his outcome disputed any claim that the complainant had been absolved of all fault in relation to his three accidents simply by way of settling personal injury claims.
The General Manager was also clear in his outcome that the disciplinary process, of which the appeal is the last internal step, was initiated as a result of serious concerns that the complainant was not following Health and Safety standards and procedures evidenced by the large amount of accidents he sustained and Personal Injury claims lodged. The General Manager went on to outline that the specific concerns were that the complainant could be a danger to himself and to others in the workplace as the high level of accidents on site is unique when compared to other operatives who carry out the same role.
The General Manager noted that during the investigation and disciplinary the complainant had confirmed on several occasions that the site was a safe place to work and that he had been well trained. The General Manager found that the complainant had an obligation and responsibility to follow his training which puts emphasis on assessing any potential risk and reporting all risks encountered when on site. The General Manager noted that the complaint had only raised two Health & Safety Concern Forms during his employment. Further there was no record of the complaint raising any other concerns of Health & Safety nature to any member of management or during any meetings including General Meetings where operatives routinely put forward concerns of a Health & Safety to senior managers.
The General Manager concluded his later by stating “The nature of our site is such that we have an obligation to all employees, contractors and visitors to provide a safe working environment. In your case a decision was made based on the likelihood of you having another accident taking into consideration the accidents and subsequent claims you have had over the course of the last six years. We refresh every employee and contractor’s H&S training on a yearly basis. Yet despite having received annual refresher training you went on to have five accidents that were as a result of you not following this training” … “Further you did not offer any reassurance to the Company at any stage of the disciplinary process that you would do your utmost to ensure that you are compliant with your training going forward. It is my belief that should I reinstate you to your position it is likely that you will have another accident on site and this is not something that we can allow given our obligations to provide a safe working environment for everyone on our site.”
The General Manager upheld the dismissal.
The Safety, Health and Welfare at Work Act sets out the duties and responsibilities of both employers and employees. The respondent takes those duties and responsibilities very seriously and invests considerable resources in same.
The Act states at section 13.—(1) An employee shall, while at work—
(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee's acts or omissions at work,
(g) having regard to his or her training and the instructions given by his or her employer, make correct use of any article or substance provided for use by the employee at work or for the protection of his or her safety, health and welfare at work, including protective clothing or equipment,
The complainant in the instant case had repeatedly shown that he was unwilling or incapable of achieving the basic standard of safety in the workplace.
Findings and Conclusions:
Burden of proof is on the Respondent:
S.6(6) of the Unfair Dismissals Act 1977, as amended, provides:
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”
It has been submitted that the Complainant has been unfairly dismissed in circumstances where his dismissal resulted wholly or mainly from his having lodged civil proceedings in relation to a personal injury claim. Further or in the alternative, it is submitted that the procedure adopted by the Respondent to dismiss the Complainant was an unfair procedure. The Respondent argues that it owes all of its employees a duty of care and the complainant, due to the number of accident had in the workplace posed a risk not only to himself but to others.
S.6(2)(c) of the Unfair Dismissals Act 1977, as amended, provides
“that the dismissal of an employee shall be deemed to be an unfair dismissal if it results wholly or mainly from “civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness.”
The Act is silent as to any exceptions to this provision.
In addition, s.6(7)(a) of the Act provides:
“that in determining if a dismissal is unfair, regard may be had to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”.
It is clear from the evidence that the respondent was very suspicious about a number of the complainant’s personal injury claims. However, no evidence was proffered that they provided any evidence to their insurance company backing up those suspicious. No adverse findings, allowed for by the Civil Liability and Courts Act 2004, were ever made against the complainant. The claims were settled albeit without an admission of liability. I also note that other than suspending the complainant, at an unusual time in the process, and finally dismissing him, the respondent did nothing else to ease its concerns about the complainant’s level of accidents. Many other options were open to them to address their concerns but it would seem that none were considered.
The Respondent’s investigation focused on the level and pattern of absenteeism resulting in a finding that the complainant had abused the system for his own financial gain. Even if that is the case, and I am not making a finding on that either way, he was not dismissed for abusing the system in relation to sick pay etc He was dismissed for filing a “ 3rd personal injury claim”.
Furthermore, The Respondent attempted to justify its decision to dismiss the complainant based on his failure to adhere to the Health and Safety training given to him annually. Again, this was not the reason he was actually dismissed and therefore has no relevance to the actual decision I have to make.
There is no doubt whatsoever that the reason for the complainant’s dismissal was due to the filing of the 3rd personal injury claim. The letter of Dismiss is even headed “ Alleged gross misconduct arising from recent lodgement of 3r personal injury claim against the company”. The Act is very clear that an Employer cannot dismiss an Employee because they have filed a personal injury action. It is for that reason that I find that the complainant was unfairly dismissed. I do not intend to comment on the disciplinary process in those circumstances.
I am satisfied that the complainant has made efforts to mitigate his loss. In all the circumstances I find that compensation is the most appropriate remedy and I award the complainant € 10,000.00
CA 12415 -002
4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.
(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—
( c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,
I award the complainant four weeks’ notice amounting to € 2,920.00
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I award the complainant four weeks’ notice amounting to € 2,920.00
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.
The claim succeeds. I award the complainant € 10,000.00
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly