ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023604
Martina Weir Siptu - Works Rights Centre
John Brennan Ibec West
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 29/01/2020
Workplace Relations Commission Adjudication Officer: Janet Hughes
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The complainant was dismissed by way of a letter on May 27th, 2019, receiving four weeks’ pay in lieu of notice. This followed a paid suspension which commenced on December 11th, 2018. The reason given for the dismissal relates to two incidents in the workplace involving the complainant and two overlapping disciplinary processes related to those incidents, the first of which was the subject of a hearing and a recommendation by an Adjudication Officer of the Workplace Relations Commission in May 2019. That was taken into consideration in arriving at a decision to dismiss the complainant. The complainant was employed in this employment from January 1998 until his dismissal.
Summary of Complainant’s Case:
The claim of unfair dismissal is based on a belief that the Respondent did not afford the complainant fair procedures when making the decision to dismiss him. Prior to his suspension his annual income was €58528 inclusive of planned overtime an on-call allowance and weekend premia.
The redress sought is compensation.
The complainant was a skilled operative responsible for operating a forklift truck in a very busy and tight work space and sufficiently skilled to repair machinery breakdowns when called out to do so and generally very flexible in his roles. The culture was described as one with a strong focus on ensuring the customers were not subjected to delays-speedy loading and unloading was required by customers and truck drivers resulting in constant movement of product during the 8.5-hour day.
The incident in September 2018 was described. The action of the complainant and another employee on that day was to assist a truck driver who had damaged his truck when reversing into the loading day. Ultimately this led to a final written warning reduced by an Adjudication Officer to six months.
What were described as complications arose during the period when the final written warning was going through procedures.
At a meeting on December 11th ,the complainant was informed that he was to be suspended on pay due to a separate incident. At the meeting management could not provide full details of the incident saying that the incident was raised by the plant manager following a review of CCTV footage while carrying out an inventory assessment. The complainant was barred from attending his place of work or communicating with his colleagues.
The letter of suspension was prepared before the meeting which the union contended meant that implementing the suspension was the main purpose of the meeting. On December 13th in a letter to the complainant HR stated that a customer complaint had led to the inventory assessment and the review of CCTV.
SIPTU disputed a suspension in circumstances where management were not in a position to fully detail the matters which led to the suspension. The failure to provide notice of the possibility of a suspension in advance of the meeting on December 11th and the fact that the management did not have full details of the allegations is the first procedural issue raised on behalf of the complainant.
In the second procedural ground set out, it was submitted that the allegations changed at different stages:
10 December alleged breaches of health and safety requirements including misuse of a companyforklift truck and potential damage to customer product which was not reported
11 December involved in another incident involving misuse of a company fork truck whilst moving company product on 26 November last and this was not communicated by you to your supervisor or your manager. The minutes of that meeting record was damage to customer product.
Investigation meeting when asked the responder seemed uncertain of the allegations and replied, ‘ Ibelieve misuse of Company Policy.’
CCTV was reviewed on 21 February and this was described by SIPTU as showing the complainant driving the fork truck in a tightly crammed warehouse and on one occasion the forks engaged with a pallet of product which was very much in his path while he was zig zagging through tight spaces in an effort to load waiting trucks.
At the resumed investigation meeting clarification was received of the allegations against the complainant:
Misuse of Company Forklift, Breach of Health and Safety Procedures and a Failure to Report an Incident. Moving 4-6 pallets was described as malpractice.
The investigator stated that the procedure would be to move one pallet at a time; clipping a pallet should have been reported. SIPTU contended that none of the policies or procedures supporting these statements was ever produced and no clarity was provided on the particulars of the misuse of the fork truck or the breach of health and safety procedures. While the Safety Statement of 2014 was provided but there was no reference in this to the specific issues that were deemed to eb a safety breach. The absence of documented policies to support the claim that they were breached or not adhered to by the complainant is the third substantial procedural ground presented on behalf of the complainant.
Based on the lack of clarity around the allegations and in the absence of supporting documentation, the Union sought to have the investigation dropped as the process was flawed.
The Investigator said that he would visit the to review the warehouse. He also said he would review a HSA Inspection Report and include it in his investigation report, but he failed to do so.
SIPTU sought to have the Complainant returned to work assigned to different duties. Before and during the investigation process SIPTU set out positions and raised issues in writing on several occasions on the different elements but received little satisfaction to judge from the submission to the hearing. The report contained no replies to the issues raised by SIPTU. The Investigator recommended disciplinary action.
The disciplinary meeting took place on May 13th. Reference was made to one of the decision makers who had suspended the complainant in the first instance.
The grounds for the dismissal were stated as:
· Misuse of Steris Fork Truck
· Health and Safety Management and
· Failure to Report the incident to Site Management
The letter did say that the appropriate sanction was a verbal warning and then added from the disciplinary policy: any further offence during a period whereby a final written warning is live on your file, will result in termination of your employment… whereas, the union submitted, the wording of the policy is may rather than the certainty of will as stated in the letter of dismissal. This point was submitted as a further procedural flaw, indicating a management focussed on dismissal as opposed to being open to dismissal and contradicts the suggestion that they had no alternative but to dismiss the complainant.
The appeal hearing was unsuccessful.
The complainant suffered a financial loss during his suspension as he received only basic pay during that period. He had not obtained alternative employment at the time of the hearing and was in receipt of disability benefit at that stage. A calculation of loss was given as 32 weeks to the date of the hearing less 14 weeks unavailable for work following a road traffic accident giving a total of €15764. In the employment he had access to a paid sick scheme which may have applied to thirteen of the fourteen weeks. In addition, he was compelled to cash in his pension therefore suffering a further loss. Until September when he had the road traffic accident the complainant completed Truck and Bus Driver training. Compensation was sought by way of redress.
Summary of Respondent’s Case:
On September 12th, 2018 the complainant was involved in a workplace incident involving another employee which was investigated as a health and safety incident. Resulting from the investigation, the complainant was issued with a final written warning on January 17th, 2018 to remain on his record for twelve months. Following an unsuccessful appeal of the sanction, the complainant referred the sanction from the first incident to the WRC on February 19th, 2019. The recommendation from the adjudication officer was to consider the reduction of the final written warning to one of six months rather than twelve and ending on 16 July 2019.
While the first process of investigation and disciplinary action was ongoing, a second incident involving the complainant came to the attention of the respondent. This second incident had occurred on November 26th, 2018. A disciplinary meeting related to the first incident scheduled for December 11th was then deferred by the respondent who informed the complainant accordingly in a letter but also requested that the complainant attend a meeting on the scheduled day in correspondence which referenced the second incident. At the meeting on December 11th the complainant was suspended with pay on the basis that that the incident on November 2018 raised matters of an extremely serious nature and once again of health and safety concerns.
Following exchanges of correspondence with SIPTU, a final written warning in relation to the first incident was issued on January 17th, 2019 with the appeal stage concluding on February 4th, 2019.
Regarding the second incident, two investigation meetings took place in February 2019. In their submission the respondent set out the details of the second incident as ‘the Claimant having hit a pallet and subsequently moved a number of pallets in excess of the number allowable thus potentially breaching procedure. The reporting structure within the Respondent(sic) requires any such incident be reported, something that had been reaffirmed with the Complainant many times during the first investigation. The Claimant however failed to report any of this incident.’
At a disciplinary hearing on May 13th which followed on from the investigation, the claimant put forward several mitigating circumstances none of which were accepted. He accepted he hit another pallet but had not perceived any damage, believed it was not necessary to report the incident, he was aware he was to move only one pallet at a time but was just ‘tightening them up’.
An appeal on behalf of the complainant containing fourteen ground of appeal did not change the decision to dismiss the complainant.
The submission on behalf of the respondent is that the decision to dismiss was substantively and procedurally fair. The test set in Looney & Co. Ltd v Looney, UD843/1984 was cited as a precedent regarding the test set for those adjudicating in cases of unfair dismissal. The issue raised by the second incident was one of a serious breach of health and safety regulations by the complainant at a time when he knew there was an ongoing investigation into other breaches. Reference was made to the employer’s responsibility to exercise a statutory duty of care to all employees under the Health Safety and Welfare Act,2005 section 5.8.
‘It is the Respondents position that the Claimants actions in the context of that other incident under investigation at the time amounted and the 2005 Act provided a context which ‘amounted to serious health and safety breaches and the health and safety of the Claimant and other staff were placed in jeopardy as a direct result thereof. Failure to take action in those circumstances would have amounted to negligence on the part of the Respondent.’
Section 6(4)(b) of the Act of 1977 was cited as a defence.
Regarding redress, it was submitted that the complainant is not entitled to seek any redress under the Act of 1977 as revised, in light of his inappropriate actions.
Findings and Conclusions:
The complaint that the procedures followed by the respondent were flawed to such an extent that they rendered the dismissal unfair flawed is upheld. In arriving at this conclusion, the following factors are considered crucial.
While not accepting that an employer must know all the exact details of a charge prior to the commencement of a pre- disciplinary investigation-there is a general principle of fairness where the employee entering such an investigation must have a clear understanding of the issues being investigated. The clarity is required to ensure that the outcome of the investigation is measured against the issues to be investigated and, the relevant section of the disciplinary procedure in the employment. Terms of reference setting out the purpose of the investigation were not provided to the complainant; neither the letter of December 10th or 11th 2018 indicate the terms of the disciplinary procedure under which either suspension or the investigation were to be measured; the terminology used to describe the issues under investigation altered before and during the investigation and, from the uncontested evidence on this point, the investigator was unclear or at least could not provide an exact description of the purpose of the investigation at the first investigation meeting. It is the responsibility of the employer to ensure that prior to commencing an investigation, there is clarity of purpose and the tests which will be applied to any outcome. Tests in this case refer to the usual understanding that a suspension, which in this case did involve a financial sanction on the employee by way of a loss of regular earnings, would occur in a case of potential gross misconduct as is the usual term which may result in a dismissal. In this case, the respondent has acknowledged that the actual offence merited a verbal warning only but did not inform the complainant that this was the section of the procedure under which the investigation was conducted at any time until his dismissal and then utilised the existence of a final written warning to justify dismissal. In not informing the complainant of the route through the investigation by issuing terms of reference for the investigation and or declaring the section of the procedure under which the investigation was to be conducted, there was an inequality in the procedures adopted which, due to the lack of transparency, favoured the respondent from the outset.
An additional procedural consideration considered crucial is the failure of the respondent to place before the employee those policies, procedures, training modules of standard operating procedures or the HSA Report against which his performance was measured or considered by the investigation. Again, there is a lack of transparency in the approach adopted by the respondent. This conclusion is supported by the fact that the complainant was first presented with one document cited by the employer at the WRC Hearing and a further unsolicited document was supplied by the respondent following the hearing.
The final procedural consideration in arriving at a finding that this was an unfair dismissal, are the terms of the letter of dismissal where the respondent, incorrectly citing the disciplinary policy stated: May 27th,the letter of dismissal, ‘ that in circumstances where (the Claimant) hada live final written warning on file(that issued on January 17th related to the first incident, given that a further offence had occurred, the Respondent, in accordance with its Disciplinary Policy, had no option but to dismiss the Claimant.’
Having reviewed the disciplinary procedure of August 1991 agreed with SIPTU the procedure contains no statement in the words used by the respondent in the letter of dismissal. An extract provided by SIPTU states: ‘As per section 1.0 of this policy, depending on the seriousness of the case and the circumstances surrounding it, the disciplinary procedures may be entered into at any of the stages outlined above.’ The Respondent did have an option of suspending the employee without pay as a sanction based on repeated breaches of procedures, work practices or performance but instead used a theoretical approach, not so clearly defined in its own disciplinary process as a reason for suggesting there was no alternative to dismissal. Given the principal of any disciplinary procedure, that aside from proven cases of gross misconduct, the purpose of the procedure where performance is at issue, allows the employee concerned to have the opportunity to improve his performance or where the performance does not improve, a graduating process of sanction is provided for within the policy. In this instance, and which is found to be procedurally unfair, the complainant had not received any sanction at the time when the second incident occurred and while the disciplinary procedure in relation to first incident was not completed the second one commenced. That first process was completed internally while the complainant was suspended and effectively, instead of measuring performance while under sanction, different events each meriting different sanctions were rolled into one by the respondent as grounds for a dismissal by reference to the terms of the disciplinary policy but not provided for in the policy.
Finally, in terms of fair procedures, the investigation and disciplinary process for an issue which it is acknowledged merited a verbal warning in its own right, took fully five months to reach a conclusion during which the time the complainant was earning less his normal earnings. All the indicators are that from the outset, in taking a decision to suspend the complainant, in denying him the opportunity to contact other employees, the absence of clarity around the issues to be investigated, the absence of clear terms of reference, the lack of transparency around the provision of documentation, the severity of the sanction and most particularly the combining of two sanctions on a basis not defined in the disciplinary procedure-there was a high degree of pre-determination of the final decision i.e. that the complainant would not be retained in the employment prior to the suspension, investigation and disciplinary procedure.
IBEC submitted that the decision of the respondent was substantively and procedurally fair. On the substance of the issues, it is found that there were genuine reasons for concern around the performance of the complainant over a two-month period in 2018. These factors are taken into account in terms of the redress decided in this case. Where a dismissal is found to be procedurally flawed, not to a minor or slightly imperfect extent ,but to the degree found in this case ,it cannot be anything other than unfair.
In deciding on redress, I am allowing for re-engagement without any break of service but inclusive a period which serves in effect as a sanction against the complainant for his own contribution to the stance adopted by the respondent. Give the difficulty he was already in at the time of the second incident, a more common-sense approach was merited particularly around reporting and knowing that the respondent was already concerned about his work practices and performance after the first incident. And generally, he should have been far more more mindful of his obligations to the employer in terms of safe practice.
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.
I find that the dismissal of the complainant was unfair. In terms of redress I consider that re-engagement on his previous terms of employment without any break in service is the appropriate remedy in this instance. Compensation would fall far short of the loss which he has already experienced and will experience when the rate of pay and other terms of employment, his service and age are examined. Given his contribution to the decisions taken by the employer, he should be re-engaged with effect from 12.09.2019 which means that he will have served an unpaid suspension from the end of the paid a notice period of four weeks at the end of February 2019 to September 12th, 2019 inclusive. He may be entitled to the terms of the company sick pay scheme after that date given his unrelated accident. The complainant should be placed on a final written warning for twelve months from the date of his actual return to work and must complete any re-training required by the respondent on his return to work. He will need to re-arrange his pension entitlements in consultation with the employer and the pension provider following his return.
Dated: 24th March 2020
Workplace Relations Commission Adjudication Officer: Janet Hughes