Complainant

Respondent

Parties

Kenneth Troy

Arch-I Modular Solutions Limited

Representatives

Anthony McIntyre, Independent Workers' Union

Eoin O’Connor BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00063804-001

29/05/2024

The respondent employs around 20 people and is engaged in the construction of modular buildings.  On November 30th 2022, the complainant commenced employment as a general operative on an hourly rate of €18.00, equivalent to a salary of €37,500.  On March 7th 2024, the director, Mr Matt Fitzgerald, saw him working at height on a platform with no safety barriers on the open sides.  He suspended the complainant and, following an investigation, on May 2nd 2024, he was dismissed.

It is the union’s case that the dismissal of the complainant was procedurally unfair, primarily because Mr Fitzgerald conducted the disciplinary investigation.  The union also claims that the disciplinary hearing and the dismissal was penalisation for the complainant having submitted a previous complaint to the WRC.

Chronology of Events Leading to the Complainant’s Dismissal

On February 7th 2023, the complainant was in the job three months when he injured his hand using a drill.  He had to have stiches in the wound.  On July 21st 2023, he fell off a ladder causing fractures to bones in his ankle and foot.  He was then absent for five months until November 27th 2023, during which time he was paid his wages. 

On February 1st 2024, the complainant was notified of a disciplinary meeting to be held the following day.  His request to be accompanied by a union official was denied.  He attended the meeting, but he didn’t answer any questions because he felt that he was at a disadvantage due to the absence of a professional advisor.  He submitted a dispute to the WRC on February 13th 2024, seeking a recommendation under the Industrial Relations Act 1969.  That matter was heard by me at the WRC on May 30th 2024, by which time the complainant had been dismissed (on May 2nd).  Although he appealed against his dismissal, by the date of the hearing under the industrial Relations Act on May 30th, an appeal had not taken place.  At the hearing, I was informed by Mr McIntyre, that this complaint, under the Unfair Dismissals Act 1977, was submitted to the WRC the day before, on May 29th 2024.

Following the incident on March 7th 2024, when the complainant was observed on the platform without barriers at the back and sides, he was suspended and an independent HR consultant, Ms Karen Stace, was appointed to conduct an investigation.  On March 13th, the complainant and his union representative, Mr McIntyre, attended a meeting with Ms Stace.  The company foreman and another employee were also interviewed as part of the investigation.  In a report dated March 20th 2024, Ms Stace recommended that a disciplinary investigation should take place regarding the platform incident.

The complainant was requested to attend a disciplinary meeting over Zoom on March 25th 2024.  The meeting was conducted by a manager who left the company before he made a decision about how to proceed and a decision was made to hold a fresh disciplinary hearing on April 22nd 2024.  This time, the director, Mr Fitzgerald conducted the meeting.  Mr Fitzgerald was accompanied by the office manager, Ms Joanne Beirne.  When the meeting opened, Mr McIntyre raised a concern about Mr Fitzgerald conducting the meeting, when he was the person who saw the complainant on the platform without safety barriers on March 7th.  Mr McIntyre did not object to the meeting going ahead, and during the proceedings, he raised another concern.  He told Mr Fitzgerald that the complainant had seen another employee working at height without a safety barrier and that no disciplinary action had been taken.  Mr McIntyre claimed that the complainant was being singled out because he had previously objected to participating in a disciplinary investigation without the support of his union representative.

On May 2nd 2024, the complainant was informed that he was dismissed for gross misconduct, arising from his failure to observe safe procedures when he was working at height on March 7th.  The following day, May 3rd, he indicated that he wished to appeal.  On May 7th, the office manager, Ms Beirne, acknowledged the complainant’s appeal and told him that she would contact him “in due course with details in relation to the process.”  On May 9th, Ms Beirne wrote again and asked the complainant to set out the grounds of his appeal.  He replied on May 13th and said that his appeal was based on the fact that he was “selected for disciplinary action by the same person who heard my case.”  On May 15th, Ms Beirne wrote again to the complainant with information about his final wages.  Regarding his appeal of his dismissal, she wrote,

“I am just waiting for confirmation of availability from an independent third party and will be in touch with you regarding this as soon as possible.”

On May 29th, before the appeal had been arranged, the complainant submitted this complaint to the WRC.

In accordance with s.6(1) of the Unfair Dismissals Act 1977 (“the Act”), the burden of proving that the dismissal of the complainant was not unfair rests with the respondent.  At the opening of the hearing, I asked Mr O’Connor to set out the employer’s position in response to the complainant’s case that his dismissal was procedurally unfair.

The Disciplinary Procedure

It is the respondent’s case that the complainant was dismissed because of his conduct.  An investigation was carried out by an independent HR professional.  The complainant was informed of the allegation against him and his responses were fully considered.  When he was informed that he was dismissed, he was also informed that he could appeal the decision, but he lodged this complaint before an appeal meeting could be arranged.  For the respondent, Mr O’Connor submitted that the complainant failed to exhaust the internal disciplinary procedures before he lodged this complaint.  He argued therefore, that the complaint is unreasonable and premature.

The Principle that a Person Cannot be a Judge in their own Cause

Mr O’Connor referred to the disciplinary meeting held on April 22nd 2024, following the departure of the manager who commenced the process on March 25th.  Mr O’Connor included in his submission the notes of the meeting on April 22nd, at which Mr McIntyre raised an issue with Mr Fitzgerald “being a party” to the incident that resulted in the complainant’s dismissal.  The notes show that, in response to Mr McIntyre’s concern, Mr Fitzgerald replied that the meeting had to be hosted by a senior manager, and he was the only one available.  Mr McIntyre pointed out that, “if this ends up before the WRC this will go against you.”  Mr Fitzgerald said that he wanted to move forward and Mr McIntyre repeated his concern about Mr Fitzgerald “being a judge in your own cause,” but, having made that point, he agreed to proceed.

While the union’s case that the dismissal of the complainant is procedurally flawed due to the involvement of Mr Fitzgerald in the disciplinary investigation, Mr O’Connor submitted that there are important legal precedents which demonstrate that this argument is misplaced.

The Labour Court’s view of the “nemo iudex in causa sua” principle was set out in its determination in Douglas v Connect Trade Union[1] as follows:

“In the view of the Court, the role of the General Secretary in initiating a complaint arising from the Appellant’s refusal to comply with his instruction and ultimately taking the decision to dismiss the Appellant offended against the principle of natural justice often referred to as “nemo iudex in causa sua” – no person should be a judge in their own cause.  In the view of the Court, this sequence of involvements by the General Secretary fatally undermined the Respondent’s assertion that it had conducted all procedures fairly when arriving at the decision to dismiss the Appellant.  The Court is fortified in reaching this conclusion when account is taken of the fact that the General Secretary was present at the National Executive Committee meeting which considered the Appellant’s appeal, and which decided to uphold the decision of the General Secretary to dismiss the Appellant.”

Mr O’Connor submitted that reliance on the nemo iudex argument in the instant matter is misplaced for two reasons.  Firstly, the requirement of natural justice is not absolute and depends on each case and second, if a party has acquiesced in any breach of the principle, this will disentitle them to relief.

Mr O’Connor focussed on what natural justice demands and referred to the Supreme Court judgement in Mooney v An Post[2] where it was held that,

“The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case.  Indeed two of the best-known precepts of natural and constitutional justice may not be applicable at all in certain cases.  As the learned trial judge has pointed out the principle of nemo judex in causa sua seldom applies in relation to a contract of employment where the employer judges the issue and is an interested party.  Likewise it is difficult to apply, to a contract of employment, the principle of audi alteram partem which implies the existence of an independent judge who listens first to one side and then to the other.

If the contract or the statute governing a person's employment contains a procedure whereby the employment may be terminated, it usually will be sufficient for the employer to show that he has complied with this procedure.  If the contract or the statute contains a provision whereby an employee is entitled to a hearing before an independent board or arbitrator before he can be dismissed then clearly that independent board or arbitrator must conduct the relevant proceedings with due respect to the principles of natural and constitutional justice.  If however the contract (or the statute) provides that the employee may be dismissed for misconduct without specifying any procedure to be followed, the position may be more difficult.

Certainly the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal.”

From this, it is apparent that the justice of a particular case will vary with the circumstances of the case, and that the two of the well-established principles of natural and constitutional justice may not be applicable at all in certain cases.  While the employee is entitled to the benefit of fair procedures, what this entails will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal.  For this reason, Mr O’Connor said that it is necessary to examine the respondent's disciplinary procedure.

The Respondent’s Disciplinary Procedure

A copy of the respondent’s disciplinary procedure was included in the book of documents provided by Ms McEntee for the hearing.  Mr O’Connor submitted that the complainant’s rights under the procedure were fully vindicated: he was issued with notice of the meeting, his representative accompanied him and he got a fair hearing.  Mr O’Connor referred to a remark made by the complainant’s union representative, Mr McIntyre, at the close of the meeting, at which he summarised the union’s position:

“Ken’s position is that he feels that he has been unfairly selected for a disciplinary hearing and he is asking you to examine in your role as chair the other factors and relevant history to the accusation.  That said, I think that you have conducted this meeting very civilly and courteously and I hope we have too.  If all disciplinary hearings were conducted as well we would have less problems in the workplace.”

Mr O’Connor referred to stage 4 of the company’s disciplinary procedure which deals with the sanction of dismissal.  The procedure provides that an employee may be dismissed at the conclusion of a series of warnings or, they may be dismissed summarily for gross misconduct.  The procedure states that summary dismissal arising from gross misconduct will only be decided upon by a senior manager.

Acquiescence

While the respondent denies that that there was a breach of the nemo iudex principle, Mr O’Connor argued that the complainant acquiesced in any such breach and has therefore disentitled himself to any relief flowing from such breach.  At the disciplinary meeting at which Mr McIntyre raised his concern about Mr Fitzgerald conducting the investigation, the complainant could have decided not to continue until an alternative chairperson could be found.  He elected to continue with the meeting.  If he thought that his right to fair procedures was at risk, he was obliged to discontinue the meeting.  He chose to proceed, and Mr O’Connor submitted that, by his actions, he has waived his right to rely on this line of argument.

Failure to Exercise the Right to Appeal

The complainant was advised of his right to appeal, but he lodged a complaint to the WRC before the appeal could be heard.  This has deprived the respondent of an opportunity to have the matter examined by an independent person, without the need for a hearing at the WRC.

Mr O’Connor referred to the Code of Practice on Grievance and Disciplinary Procedures which is set out in Statutory Instrument 146 of 2000 which provides that,

“The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.”

Mr O’Connor referred to the following precedents that demonstrate that there is an obligation on a dismissed employee to utilise the appeal mechanism:

Melinda Pungor v MBCC Foods Limited[3]

In this decision of the former Employment Appeals Tribunal, it was held that the complainant’s failure to appeal her dismissal was fatal to her claim that her dismissal was unfair:

“The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally.  She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.”

Aryzta Bakeries v Cacs[4]

In this case heard by the Labour Court in 2015, the chairman, Mr Foley stated that,

“…there is an obligation on the Claimant to exhaust available internal procedures and that the Claimant failed to do so.  For the reasons stated above and taking account of the failure of the Claimant to exercise his right of internal appeal, the Court finds that the Claimant was not unfairly dismissed.”

Rowland v An Post[5]

In this judgement of the Supreme Court, Mr Justice Clarke held that, if there are procedural irregularities in the process that ends with the dismissal of an employee, they can be corrected before the procedure has concluded:

“Precisely because procedural problems can be corrected and because there may well be a significant margin of appreciation as to the precise procedures to be followed it will, in a great many cases, be premature for a court to reach any conclusion on the process until it has concluded.”

Was the Complainant Singled Out for Dismissal?

At the disciplinary meeting, the complainant suggested that he was “singled out where others were not.”  He also claimed that he was treated differently compared to a colleague, who, he claimed, was also observed working at a height in breach of safety regulations.

Mr O’Connor said that the position of this named colleague is indeed different from the circumstances of the complainant.  Unlike the complainant, he had not done any training on working at heights and when he was seen not following the safety procedures, he was sent for training.  He completed a mobile elevated work platform scissors course on March 11th 2024. 

Was the Dismissal Reasonable?

In response to this question, Mr O’Connor referred to the publication, Redmond on Dismissal Law[6], where, at paragraph 13, the author wrote:

“The Workplace Relations Commission (or the Labour Court on appeal) must not assume the mantle of an employer regarding the facts in any case before it.  Its function is to decide whether, within the so-called band of reasonableness of decision-making, an employer’s decision is not unfair.  The notion of a band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd v Swift.  The Court found that there is a band of reasonableness within which one employer might reasonably dismiss an employee whilst another would quite reasonably keep him on.  It depends entirely on the circumstances of the case whether dismissal is one of the penalties which a reasonable employer would impose.  A dismissal is unfair if no reasonable employer would have dismissed, but it is not unfair if a reasonable employer might reasonably have dismissed.

The ‘band of reasonable responses’ test was articulated by Lord Denning MR:

‘The correct test is: Was it reasonable for the employers to dismiss him?  If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair.  It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’”

Dr Ryan continued this point at paragraph 13.33:

“The temptation to substitute the adjudicating body’s own view for that of the employer must, however, be resisted as seen, for instance, in McGee v Beamount Hospital where the EAT sought to ask whether a sanction less far-reaching than dismissal might not have been more appropriate, but it recalled that:

The task of the Tribunal is not to consider what sanctions the Tribunal might impose, but rather whether the reaction of the respondent and the sanction imposed lay within the range of reasonable responses.”

Evidence of the Chief Executive Officer, Mr Matt Fitzgerald

In response to questions from Mr O’Connor, Mr Fitzgerald said that his company is engaged in the building of modular constructions and that the business developed quickly from 2020, providing additional workspace for the education, healthcare, pharmaceutical and commercial sectors.  Mr Fitzgerald provided details of the safety accreditations that the company has and he said that they have obligations to meet certain standards to demonstrate their professionalism at the level at which they work.  He said that the accreditations are the result of independent audits carried out by external consultants.

Since its establishment in 2020, Mr Fitzgerald said that there have been three accidents in the business, two of which involved the complainant.  On the first occasion, when he was employed for three months, he let a drill slip and injured his hand and had to have stitches.  Five months later, in July 2023, he fell off a ladder when he over-reached from a step 600mm high.  He suffered a broken ankle.  He was absent for a few days because of the first incident and for four and a half months for the second accident.  He was paid his wages for the duration of his absence.

Mr Fitzgerald said that the complainant is qualified to work at heights on a mobile platform and he also has a Safe Pass for working on a building site.  Copies of his certificates were included in the respondent’s documents for the hearing of this complaint.  Mr Fitzgerald said that he expects a person who has completed this training to understand the danger of working at heights.

Between 8.50 and 9.00 on March 7th 2024, Mr Fitzgerald said that he went to the workshop where the complainant was working.  He wanted to speak to the foreman.  He said that he got a phone call from a customer and, as he was talking on the phone, he observed the complainant on a four-step ladder which he was using to access a platform 1.3 metres high without safety barriers at the back and sides.  Mr Fitzgerald referred to a photo that he took of the complainant on the ladder.  When he finished the call, Mr Fitzgerald said that he approached the complainant and asked him why he was working in an unsafe manner on the platform.  He said that the complainant replied that he thought it was safe.  He said that he told him that accessing the platform using a ladder was not a safe way of working.  The top step of the ladder was level with the platform and the complainant risked over-balancing and falling.

Mr Fitzgerald said that he spoke to the complainant for four or five minutes and told him to get off the platform and to bring a ladder into the workshop to complete the job.

In response to a question from me, Mr Fitzgerald said that the director who conducted the first disciplinary meeting in March 2024 was bought out and when he was asked to conclude the disciplinary process, he said that he was too busy.  Mr Fitzgerald said that he conducted a second meeting on April 22nd 2024.  He agreed with Mr O’Connor that Mr McIntyre put it to him that he was a witness to the incident on March 7th 2024 and that he should not conduct the disciplinary hearing.  Mr Fitzgerald said that he told Mr McIntyre that he understood the point he was making but that he wanted to proceed.  If they weren’t happy, Mr Fitzgerald said that he expected that they would have stopped the meeting.

Mr Fitzgerald said that he decided that he had to let the complainant go.  He said that he had lost trust in him.  He had two previous accidents, one of which involved a fall from a ladder.  Although he was qualified, he seemed not to understand that he was putting himself at risk.  Mr Fitzgerald said that he couldn’t risk the complainant having another accident.

When he was absent on sick leave, Mr Fitzgerald said that he arranged safety training by an external consultant.  Quarterly safety audits are carried out and the staff attend quarterly safety talks.  When the complainant was due to return to work in November 2023 after his fall from the ladder, Mr Fitzgerald said that he asked him to come back in for the safety talk.

Mr O’Connor referred to the complainant’s contention that he was dismissed because he submitted a complaint previously to the WRC regarding his right to have his union represent him at a disciplinary meeting.  Mr Fitzgerald said that his first time to attend the WRC was for the hearing on May 30th 2024.  He said that he takes huge pride in his employees and that a lot of the group have been with him since the early days.  He said that as the person with responsibility for the safety of the employees, he has to have proper systems in place to ensure their safety.  He said that he has worked on construction sites where serious accidents have occurred and he doesn’t want accidents in his workplace.

Mr O’Connor asked Mr Fitzgerald about the other employee who the complainant said was also working in an unsafe manner, but who wasn’t dismissed.  Mr Fitzgerald said that, as he was approaching the complainant on March 7th 2024, he noticed the other worker on a ladder that was too short.  He spoke to him and instructed him to get a long ladder.  Mr Fitzgerald said that this employee was booked for training on working at heights for March 11th and a note was placed on his personnel file.

Cross-examining of Mr Fitzgerald

Mr Fitzgerald agreed with Mr McIntyre that his first outing at the WRC was in relation to the right of the complainant to be represented at a disciplinary meeting by his union official. 

Mr McIntyre referred to Mr Fitzgerald’s statement that he didn’t trust the complainant to work safely.  Mr McIntyre asked when the mistrust started.  Mr Fitzgerald replied that it occurred on the morning of the incident on March 7th.  He said that the complainant had had two accidents previously, one of which involved a call from a ladder.  He said that it wasn’t acceptable to find the complainant working in that manner and that he could have been badly hurt.

Mr McIntyre noted the apparent conflict between his lack of trust in the complainant and the fact that he conducted the disciplinary meeting.  He put it to Mr Fitzgerald that he “went in with his mistrust” and that he could have brought in an external person.  Mr Fitzgerald replied that he thought that it would have been unfair to the complainant to make a decision based on the meeting conducted by the senior manager who left the company and that, on March 7th, he gave the complainant and Mr McIntyre the option of proceeding or not proceeding.

Mr McIntyre replied that they proceeded under protest.  Mr Fitzgerald said that he got advice and he was advised that it was okay to proceed and that Mr McIntyre agreed to go ahead with the meeting.  He reminded Mr McIntyre that, at the end of the meeting, he remarked that they had been treated with courtesy.  Mr McIntyre replied that Mr Fitzgerald has a respectful way of dealing with people but he said that the advice he got wasn’t good.

Moving to the complainant’s decision to appeal against his dismissal, Mr McIntyre said that the complainant submitted his grounds for appealing.  He said that it was unfair that Mr Fitzgerald was the decision-maker when he initiated the disciplinary investigation in the first place. 

Mr Fitzgerald said that the office manager wrote to the complainant to explain that they were looking for an external person to confirm his or her availability to hear his appeal.  A few days before the first hearing at the WRC in May 2024, Mr Fitzgerald said that Ms Sonia McEntee had been asked the conduct the appeal hearing.  When they were at the WRC, they were informed that another complaint had been submitted and he said that he was advised that this would take precedence over the appeal.

Mr McIntyre said that Mr Fitzgerald could have decided that the WRC hearing wasn’t necessary and the appeal could have gone ahead.  He said that the complainant’s case is that he submitted a request for an appeal and that it didn’t go ahead.  Mr Fitzgerald replied that “you pushing forward with the WRC put a stay on an appeal.”

Mr McIntyre referred to photos he submitted which are from the respondent’s website.  He referred to a photo featuring Mr Fitzgerald where he is seen on a ladder with no high vis vest and no hard hat.  Mr Fitzgerald said that a hard hat is not required in their workplace.  He said that a couple of months ago an inspector from the Health and Safety Authority called to the workshop on one of their busiest days and spent three and a half hours doing an inspection.  The only issues raised were in relation to the car park and for spray masks to be professionally fitted.

Mr McIntyre referred to another photograph where an employee is not wearing personal protective equipment.  Mr Fitzgerald said that the pictures are taken by a marketing company and are not intended to demonstrate safe ways of working.

Mr McIntyre showed a photograph of the aluminium tower that the complainant was using on March 7th 2024.  Mr Fitzgerald said that this is an exceptional piece of equipment when used correctly.  It is not correct to use it without protection on the open sides.

Evidence of the Complainant, Mr Kenneth Troy

Mr McIntyre opened his questioning of the complainant by asking him why he thinks he wasn’t in breach of safety regulations on March 7th 2024.  The complainant replied that three lads were working overhead putting a roof on the building.  He said that if one of them fell, he was “gone.”  He said that he asked the foreman if he could use the ladder.  When Mr Fitzgerald took the photo of him on the ladder to access the platform, the complainant said that the foreman came into the workshop smoking a cigarette. 

The complainant said that “this all started the day I was refused representation the day before the disciplinary hearing” (in February 2024).  He said that two employees had been dismissed and that someone told Mr Fitzgerald that he was disappointed that one of them had been sacked.  He said that he went to get a pair of goggles and Mr Fitzgerald asked him why he needed the goggles.  He said that he used to put the kettle on 10 minutes before the break and he was told not to.  He said that he felt that he couldn’t do anything right.

Ever since he returned to work after his accident in July 2023, the complainant said that he thinks that Mr Fitzgerald wanted to get rid of him.  He said that when Mr Fitzgerald saw the accident report, “he went mad.”

Although the respondent’s position is that the complainant’s first accident occurred when a drill slipped and he had to get stiches in his hand, tThe complainant said that his first accident involved him kneeling on a screw.  Two young lads had been employed to do housekeeping.  He said that there was nothing in the first aid box to stop the bleeding and he had to drive himself to hospital to get stitches.  For the second accident, when he fell off the ladder, the complainant said that he needed an ambulance, but Mr Fitzgerald instructed another employee to drive him to hospital.

Every time he brought something to the foreman’s attention, the complainant said that he was treated as if he was causing trouble. 

Cross-examining of the Complainant

The complainant agreed with Mr O’Connor that he had a Safe Pass and a qualification to work at heights.  He agreed also that he had an injury with a drill in February 2023 and that he fell from a ladder in July that year and that he was absent from work for four and a half months.  He agreed that he was paid while he was out sick, although he didn’t agree that his employer wasn’t obliged to pay him or that this was a reasonable approach.

With regard to the incident on March 7th 2024, the complainant did not agree that the use of the mobile platform was dangerous.  Mr O’Connor pointed to the notes of the first disciplinary meeting in March 2024 at which he admitted to the manager conducting the meeting that he wouldn’t do the job that way again.  Mr O’Connor said that this response indicates that that he knew that it wasn’t safe to use the platform.  The complainant replied that “this worked to Matt’s advantage because he could use this as an excuse to get rid of me.” 

Mr O’Connor referred to a photograph of the platform used by the complainant.  The platform has a safety barrier attached.  The complainant said that it wasn’t possible to use the safety barrier because of the beams in the roof of the building. 

Mr O’Connor referred to the disciplinary conducted by Mr Fitzgerald on April 22nd 2024.  When Mr McIntyre made a point that Mr Fitzgerald shouldn’t chair the meeting, Mr O’Connor reminded the complainant that he decided to go ahead anyway.  The complainant replied that “that’s the legal stuff” that Mr McIntyre dealt with.

Mr O’Connor referred to the three emails sent by the office manager, Ms Beirne, telling him that an independent person would be appointed to hear his appeal.  At the earlier hearing at the WRC on May 30th 2024, Mr O’Connor said that the complainant informed the respondent that he had submitted this complaint to the WRC.  The complainant agreed with Mr O’Connor that, if he had taken up the option of an appeal, “we might not be here.”

Mr O’Connor addressed the complainant’s allegation that he was treated differently to an employee who, on March 7th 2024, was observed using a ladder incorrectly.  The complainant said that this employee got a warning from Mr Fitzgerald regarding that incident.  He agreed with Mr O’Connor that the employee wasn’t qualified to work at heights.

Regarding mitigation, the complainant said that he wasn’t available for work from the date of his dismissal on May 2nd.  He was on illness benefit from May 9th until July 11th 2024.

Around August 14th, he commenced working with DPD and he finished up with them sometime in October, when he moved to another job.  He had no work between July 11th and August 14th 2024.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

It is apparent from this that every dismissal is unfair until the employer demonstrates otherwise.  The burden of proof therefore rests with the respondent to set out the substantial grounds justifying the dismissal of the complainant in this case. 

Section 6(4)(b) of the Act provides that,

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

While the responsibility for proving that a dismissal is not unfair rests with the employer, at this section 6(4)(b), the legislation recognises the right of an employer to dismiss an employee for conduct that, considered by another reasonable employer in similar circumstances, is unacceptable or unreasonable.  In his letter to the complainant on May 2nd 2024, Mr Fitzgerald set out the reasons for dismissing him:

§  Following a full investigation and disciplinary hearing, I find no evidence that you did not know that your activities on the morning of the 7th of March were in breach of health and safety.

§  You are trained to IPAF (International Powered Access Federation standard) in working at heights.

§  You explained you understood barriers should have been in place, yet decided to proceed with using the platform without barriers in place.

§  I cannot trust that this behaviour would not be repeated in the future.

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

The reasonableness or otherwise of an employer’s decision to dismiss an employee was considered in 2012 in the Circuit Court appeal of the determination of the Employment Appeals Tribunal (EAT) in Allied Irish Bank plc v Purcell[7].  Mr Purcell was dismissed when he looked at the bank accounts of his colleagues and another person who was not a bank employee.  Setting out the approach of the Court to the process of reaching a decision on the appeal, Ms Justice Linnane referred to what is conventionally known as “the British Leyland test[8],” which requires the decision-maker to ask if it was reasonably open to the employer to make the decision it made.  Regarding how the test should be framed, Judge Linnane stated:

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

It is not for me therefore, as the adjudicator in this matter, to consider if the complainant should have been dismissed, but to ask if it was reasonably open to his employer to make the decision it made, or if could they have made a different decision and applied a lesser sanction.  Based on the evidence presented to me, I must consider if the decision of the respondent was that of “a reasonable employer in those circumstances in that line of business.”[9]

It seems to me that a fundamental tenet of the contract between a construction company and a construction worker is the provision by the employer of safe systems of work and the adherence of the worker to safe processes and regulations.  The failure of a worker to follow basic safety precautions is a risk that no employer can be expected to tolerate.  The fact that the complainant had two previous accidents in a space of six months and the fact that the director observed him working in an unsafe manner when he was back at work four months after the second accident, leads me to conclude that the director was correct in finding that he could not be trusted to follow reasonable safety precautions and to work at height in accordance with his training.

I have read the report of the independent investigator and the note of the disciplinary meeting of April 22nd 2024.  The complainant attributed the responsibility for using the wrong equipment to the foreman in the first instance, and then to the company, claiming that there were insufficient long ladders.  Finally, he claimed that using the platform was “handy” for the job he was doing.  Based on his failure to acknowledge his own responsibility for working safely, and his lack of understanding of the risk of an accident, it is my view that another reasonable employer in the same circumstances would have dismissed the complainant.  I find therefore, that the decision to dismiss him was not unfair.

Procedural Fairness

The unfairness that is at the root of the complainant’s claim is his contention that Mr Fitzgerald was conflicted when he conducted the disciplinary meeting on April 22nd 2024.  Mr Fitzgerald observed the complainant working in a dangerous manner on the platform on March 7th 2024.  Although the disciplinary hearing was commenced by another director on March 25th, that person left the business before he reached a conclusion and Mr Fitzgerald re-commenced the process on April 22nd 2024.  The respondent’s case is that, with the departure of the other director, Mr Fitzgerald was the only senior manager remaining in the company who could chair the meeting.

I have considered the union’s claim of procedural unfairness and it is my view that Mr Fitzgerald’s involvement in the disciplinary investigation does not mean that the decision to dismiss the complainant was unfair.  I have reached this conclusion for the following reasons:

§  The facts of the incident that occurred on March 7th 2024 are not in dispute.  In breach of safety regulations and the training he received, the complainant used a mobile platform instead of a long ladder to carry out work.   When Mr Fitzgerald spoke to him about this, he moved the platform out and, as he was instructed, he used a long ladder instead.

§  The union’s contention that Mr Fitzgerald was biased is based on the fact that he was the person who observed the complainant on the platform on March 7th.  Any other worker could have reported the same facts to Mr Fitzgerald and the outcome would have been the same. 

§  In advance of the disciplinary meeting, an investigation was carried out by an independent consultant, Ms Karen Stace.  The complainant was interviewed by Ms Stace on March 13th and represented at that interview by Mr McIntyre.

§  The decision to move to a disciplinary hearing was taken on foot of Ms Stace’s report of March 22nd 2024 and not any instruction given by Mr Fitzgerald. 

§  At the meeting on April 22nd, when he raised his concern about Mr Fitzgerald’s potential bias, Mr McIntyre did not object to continuing with the meeting. 

§  At the disciplinary meeting, no new facts were raised and meeting was mainly focussed on the complainant’s response to the allegation that he had behaved in an unsafe manner.

The problem of defects in a disciplinary process was addressed by the High Court in 1987 in Loftus and Healy v An Bord Telecom[10], where Mr Justice Barron stated that, it wasn’t a question of whether the former employees were deprived of procedures to which they were entitled, but,

“…whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish …(the basis of its dismissal) as the whole or the main reason for and justifying their dismissal.”

I accept that, from a procedural perspective, the involvement of Mr Fitzgerald in the meeting on April 22nd was not ideal.  Considered against the backdrop of the entirety of the process however, it is my view that no unfairness follows from this flaw.  The complainant clearly knew the allegation against him and there was no dispute about the fact that led to his suspension.  He had an opportunity to defend his conduct to the independent investigator in the first instance, and then to the director, Mr Fitzgerald.  He was represented by his union at both meetings.  Based on the robustness of the other parts of the procedure, the lack of complexity in the issue that led to his dismissal and the support of his union official to monitor any evidence of bias I am satisfied, that, Mr Fitzgerald’s decision to conduct the disciplinary meeting did not compromise the fairness of the process.

The Failure to Allow an Appeal

From the middle of May 2024, the office manager was looking for an independent person to conduct an appeal of the decision to dismiss the complainant.  This endeavour stalled however, when, at the hearing under the Industrial Relations Act on May 30th, the respondent was informed that the union had submitted a complaint to the WRC under the Unfair Dismissals Act.  The respondent decided that the hearing of the complaint at the WRC should take precedence over an appeal.  I can find no logic to this position and it is my view that an appeal should have been arranged, regardless of the referral to the WRC.  While I accept that the referral was premature, I do not accept the respondent’s case, as set out by Mr O’Connor, that the blame for an appeal not taking place should be placed on the complainant.  The responsibility for ensuring that all the stages in a disciplinary procedure are adhered to is that of the employer and the failure to arrange an appeal means that one of the critical steps to ensuring a fair outcome has been omitted.                       

Conclusion

The balance between the reasonableness of the decision to dismiss an employee and the reasonableness of the procedure is not an even one.  In my task to decide on this matter, I must take account of all the circumstances, including the seriousness of the complainant’s conduct, his failure to acknowledge his responsibility for safety in the workplace and his record of previous accidents.

Having listened to the evidence at the hearing, and, taking account of the submissions and the arguments presented by both sides, I find that the respondent had reasonable cause to dismiss the complainant, but that, because of their failure to give him an opportunity to appeal, his dismissal was unfair. 

I have concluded that the dismissal of the complainant was procedurally unfair, and I decide therefore that his complaint under the Unfair Dismissals Act 1977 is well founded. 

I find that, by his actions, the complainant was responsible for his dismissal.  Considering the amount to be awarded in redress, I note from his evidence that he was ill and not available for work until July 11th 2024 and that he commenced in a new job on August 14th.  Based on his loss of earnings between July 11th and August 14th, I direct the respondent to pay him compensation of €2,880, equivalent to four weeks’ pay.  This award is in the form of loss of earnings and is subject to the normal deductions of tax, PRSI and USC.

Safety regulations, working at height, unfair dismissal