Complainant

Respondent

Parties

Liam Og  Lynch

Iarnrod Eireann

Representatives

Ms. Andrea Cleere, SIPTU

 Mr. John Brosnan

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-00060242-001

25/11/2023

The Complainant commenced employment with the Respondent on 1st December 2021. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly wage of €788.46. His employment was terminated by reason of “unsuitability” following the imposition of a disciplinary sanction on 9th June 2023.

On 25th November 2023, the Complainant referred the present complaint to the Commission. Herein, he alleged that his dismissal was procedurally and substantively unfair. In particular, he submitted that the Respondent initially imposed a lesser sanction on the Complainant, and then increased the same without recourse to him or affording him the opportunity to contest this decision. In addition to the same, the Complainant submitted that the sanction of dismissal was disproportionate given the nature of the wrong-doing alleged, particularly in consideration of all the surrounding circumstances. In denying the allegation raised by the Complainant, the Respondent submitted that given the nature of the wrong doing accepted by the Complainant, the sanction of dismissal was reasonable in the circumstances. They further submitted that they abided by their own internal procedures in relation to the process adopted in relation to the same.

A hearing in relation to this matter was initially convened for 15th July 2024 by means of the remote platform. In circumstances whereby the hearing did not finalise on that date, the hearing resumed on 4th November 2024 at Mullingar Courthouse, and was completed in that session.

Both parties issued substantive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of his complaint, while three witnesses gave evidence on behalf of the Respondent. All evidence was given under oath or affirmation was opened to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

In circumstances whereby the fact of dismissal was not in dispute, the Respondent accepted the consequent burden of proof imposed by the Act and presented their case first.

By submission, the Respondent stated that the Complainant commenced employment on 30th November 2021. At all relevant times, the Complainant’s role was described as that of “Engineering Operative”. The Respondent submitted that this was deemed to be a “safety critical” role for the purposes of the Railway Safety Act 2005.

In evidence, a production manager for the Respondent stated that a number of safety related incidents arose in the course of the Complainant’s employment. These cumulated with the Complainant being invited to a meeting on 7th November 2022. During this meeting, the production manager informed the Complainant that some issues regarding the standard of his work had arisen, and that an improvement would be required. In his regard, the Respondent opened an “appraisal form” completed by the parties at this meeting. This form awards the Complainant a “poor” rating the category of “work output, accuracy, thoroughness”. Under the hearing “additional comments”, the Production Manager noted that,

“Huge improvement required, safety critical issues arising”.

The form further records an incident that arose regarding the operation of the gantry crane.  

Following this meeting, a further performance review occurred on 14th February 2023. During this meeting, the production manager advised the Complainant that further safety issues had arisen in relation to certain actions. In particular, the Production Manager advised the Complainant that he had concerns regarding the Complainant’s ability to use a gantry crane operated by the Respondent. During this meeting, the Complainant was expressly told that he was not to operate this crane pending the completion of further training on his part, and a subsequent assessment by the Respondent. Again, the Respondent opened a note of this meeting in evidence.

Approximately four weeks following this conversation, on 8th March 2023, the Respondent was informed of an incident in their yard. On an initial inspection, it was apparent that the Complainant had operated the gantry crane in contravention of the clear instruction on the part of the Production Manager and that an employee had been injured as a result.

In circumstances whereby the Respondent formed the view that the Complainant has engaged in a reckless violation of safety, and he was placed on suspension pending further investigation.

In accordance with the Respondent’s internal procedures, the Complainant was issued with an “A Form” setting out an allegation of misconduct, and on 21st April 2023, the Complainant was invited to a meeting in respect of the same. During this meeting, the Complainant accepted that he was instructed not to operate the gantry crane, and that on the date in question, he did so. Nonetheless, the Complainant denied that these actions on the date in question were reckless. In this respect, the Complainant stated that he took over the operation of the crane in the absence of any other qualified personnel on site. He stated that both the incident in question, and the injury to the worker, were not caused by his mismanagement of the machinery but could be attributed to other factors.

Following these meeting, the Complainant was issued with disciplinary outcome correspondence, known within the Respondent’s procedures as a “B Form”. Here, the Respondent found that the action of the Complainant was such that he should receive the sanction of a final written warning. In accordance with the Respondent’s internal procures, this form was reviewed by the Production Manager. By correspondence dated 2nd December 2023, the Complainant was informed that “due to the serious disciplinary sanction and concerns over your ability to follow instructions in a safety critical workplace, your contract of employment will be terminated”. In evidence, the Production Manager stated that the Respondent’s internal procedure permitted temporary staff to have their contract terminated on the grounds of unsuitability following receipt a written warning.

By submission, the Respondent stated that the nature of their business is such that they must always be conscious of safety issues and matters that might serve to endanger any of their employees. Regarding the present case, they submitted that the Complainant was expressly informed not to use the gantry crane on foot of such concerns. Notwithstanding the same, and by his own admission, the Complainant elected to operate this crane. Shortly thereafter damage was caused to property and an injury was suffered by a worker. In such circumstances, the Respondent submitted that they had no trust or confidence in the Complainant performing the role to the standard required and, as such, his dismissal was well within the band of reasonable response available to them. 

From the outset the Complainant submitted that his dismissal was both procedurally and substantively unfair.

The Complainant commenced employment with the Respondent on 30th November 2021. At all times the Complainant enjoyed his role and appeared to be performing well. While the Complainant’s contract of employment provided that a performance review would take place after six months, the Complainant was in the role for one year prior to the same occurring. The Complainant accepted that some issues were raised in this review, and the parties agreed to meet again in a further six weeks to discuss same. Three months later, on 14th February 2023, the parties held a further meeting. In evidence, the Complainant accepted that he was offered additional training regarding machine operations and that he was instructed not to use the gantry crane.

On 8th March 2023, the Complainant was requested to act as a chargehand. Due to the absence of a senior chargehand, the Complainant’s section was machine operator down. In these circumstances, an inexperienced contract worker was appointed to work on the gantry crane. During this operation, it became apparent that the load had not been properly secured, and the operator was unsure of how to safely land the load. In circumstances whereby the Complainant was the only experienced operator in the vicinity, he took over the operation and took the safest course of action, which was to land the gantry load to the ground. Unfortunately, an injury occurred whereby the foot of a contractor became trapped under one of the beams collapsing due to a fault occurring while the load was being grounded.

On that date, the Complainant was suspended with pay pending an investigation into a “reckless violation” in operating the gantry crane despite having been instructed not to do so by his line manager. An “A Form” hearing, being a form of investigation hearing under the Respondent’s procedures, took place on 21st April and 17th May 2023. These meeting were chaired by a manager from another division that did not have any dealings with the incident in question. Following this process, the Complainant was issued with a “B Form”, being the disciplinary outcome. This document outlined that the Complainant was guilty of reckless violation and applied the sanction of a final written warning to the Complainant. This document further allowed for an appeal of this sanction in accordance with the Respondent’s internal procures.

Thereafter, on 2nd June 2023, the Complainant received correspondence from the Production Manager advising that, notwithstanding the outcome of the disciplinary process, he was to be dismissed from his employment on the grounds of unsuitability. The Complainant was further informed that he would not be permitted to appeal this sanction.

By submission, the Complainant stated that he was placed in an impossible position on 8th March 2023. While he accepted that he took control of the gantry crane in contravention of a direct instruction from his line manager, he stated that he only did so to minimise and control an already dangerous situation and prevent further damage to property and injury to his colleagues. He submitted that these surrounding facts were not properly investigated, and that the Respondent simply relied on the fact that he operated the crane when instructed not to do as the basis for his disciplinary sanction. He further submitted that the process adopted by the Respondent was fundamentally unfair. In this regard, the Complainant submitted that the sanction imposed was increased to dismissal without recourse to him and without his having any opportunity to contest the same. The Respondent also unilaterally removed his right to appeal this sanction in accordance with their own internal procedures.

Having regard to the foregoing, the Complainant submitted that his dismissal was both procedurally and substantively unfair.

In the present case, the Complainant has alleged that his dismissal was procedurally and substantively unfair. While he accepted much of the substance of the allegations raised against him, he submitted that the entirety of the incident was not investigated by the Respondent and that certain crucial matters were not examined as part of the process. He further submitted that the procedure adopted by the Respondent did not respect his natural and contractual rights to fair process. In answering he claim, the Respondent submitted that the Complainant admitted to the wrong doing alleged, and that they acted in accordance with their own internal procedures in dismissing the Complainant.

In this regard, Section 6(1) of the Unfair Dismissals Acts provides that,

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

Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“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 [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

a) “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

b) to the extent (if any) of the compliance or failure to comply…with the procedure…or with the provisions of any code of practice….”.

The matter of Noritake (Irl) Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

From the evidence of the parties, it is apparent that some of the relevant factual matrix is agreed. In this regard, it is agreed that the Complainant was informed on 14th February 2023 that he was not to use the gantry crane until he had received further training and assessment by the Respondent. Thereafter, it is agreed that on 8th March 2023 the Complainant took control of the crane in question. On this date an incident occurred whereby the load being transported by the crane became unstable and was grounded by the Complainant. In this action of grounding the load, a worker in the depot suffered an injury. Following this incident, the Complainant was placed on paid suspension while the Respondent commenced an investigation into the incident.

The submission of the Complainant in this respect was that the incident in question was not properly investigated by the Respondent. In this regard, it is apparent that the Respondent engaged in a form of combined investigation and disciplinary process, with a manager from another department being charged with the same. While the Complainant accepted that he took control of the crane in contravention an express instruction from his line manager, he submitted that he did so to stabilise a dangerous situation that had arisen and to minimise any damage that might occur on foot of the same. Having reviewed the relevant materials, it is not at all apparent that the Respondent undertook any material investigation into these surrounding circumstances. At a minimum, it would be expected that the Respondent would speak to the other workers present on that date to record their version of events in order to provide some insight into what occurred. These witness statements should then have been put to the Complainant in circumstances whereby they are of probative value in relation to the allegation raised. As maters transpired, it is apparent that the Respondent simply formed the view that the Complainant operated the machine in contravention of an express direction not to do so. While the Complainant accepted this, and did not contest that this represented a form of misconduct, the circumstances surrounding his actions are, at the very least, material to the allegations raised and should have been investigated by the Respondent and considered as part of the disciplinary process.

Following from the investigation process, the Complainant received the sanction of a final written warning in respect of his actions on 8th March. In evidence, the Complainant candidly accepted that his actions on the date in question did represent a form of misconduct, albeit one that might be, in his view, explained by the surrounding circumstances. In answer to a question posed by the Adjudicator, the Complainant stated that he would have accepted the sanction imposed and worked to restore his standing with the Respondent over time. This answer represented a broader acceptance by the Complainant that he was involved in a serious incident in the workplace and that part of the relevant factual matrix was that he acted in contravention of an express direction of the Respondent. As matters transpired, following communication of the sanction, the Respondent took the extraordinary decision to unilaterally increase the same from a final written warning to dismissal and remove the Complainant’s right of appeal.

In evidence, the witness for the Respondent stated that this course of action was permitted by the Respondent’s own internal procedures and that he was concerned regarding the safety and wellbeing of the other members of staff.

In this regard, Appendix 3 of the Respondents’ disciplinary procedures is entitled

“Staff on probation – temporary – casual – seasonal staff”.

Part (B) of this appendix is entitled “temporary staff”, and states as follows,

“…After 6 months’ continuous service employment may be terminated on the grounds of unsuitability following a written warning”.

In circumstances whereby that the Complainant was engaged on a specified purpose contract, the Respondent submitted that this contractual provision permitted his dismissal on the grounds of “unsuitability”. They further submitted that provision does not allow for a right of appeal.

A number of issues arise in relation to the position adopted by the Respondent. While they may well have been operating in accordance with their own internal procedures, this does not ensure compliance with the impleaded Act. As set out above, the Act deems a dismissal to be “fair” once the employer proves that the rationale for the same falls “wholly or mainly” under one of the grounds set out in Section 6(4). In the present case, the relevant ground is “conduct” or, more accurately, misconduct. The sanction imposed by the Respondent in respect of the Complainant’s misconduct was a final written warning. By their own admission, the misconduct of the Complainant was such that it did not warrant the sanction of dismissal. This sanction was then elevated to dismissal on the grounds of a finding of, somewhat ambiguous and unclear, “unsuitability”. This finding of unsuitability is not one of the grounds of fair dismissal set out in the Act and the Respondent has no lawful basis on which discharge the burden of proof on these grounds. It is further apparent that the Complainant was not permitted any right of response to this finding and was not allowed any opportunity to advocate for his continued employment. Finally, the by dismissing the Complainant in this manner, the Respondent removed the right of appeal afforded under the disciplinary policy.

Having regard to the foregoing, I find that the dismissal of the Complainant was both substantially and procedurally unfair and his application is deemed to be well-founded.

I find that the Complainant was unfairly dismissed by the Respondent and consequently his application is deemed to be well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. By submission and in evidence, the Complainant stated that his preferred remedy was re-instatement and that in the event of a finding in his favour, he wished to be returned to employment with the Respondent. By response, the Respondent stated that they had serious concerns regarding the Complainant’s safety record, and they strongly resisted his application for a return to employment.

In the matter of An Bord Banistíochta, Gaelscoil Moshíológ v the Labour Court [2024] IESC 38, the Supreme Court held as follows,

“The remedy of reinstatement under s. 7(1)(a) can normally be said to be only applicable in a case where the WRC or Labour Court considers that the employee’s dismissal has been totally unfair and unjust, such as to require the employer to take the person back in the same job, without any break in service or loss of pay, and notwithstanding the inevitable breakdown in the relationship between them. It is a very strong remedy, and is only applicable in clear cut cases, where it is the appropriate response to perhaps high-handed and unjustifiable conduct on the part of an employer, and where any other remedy is not sufficient vindication of the employee.”

Regarding the instant case, the Respondent has resisted the Complainant’s application to return to their employment. In this respect they submitted that they harboured significant concerns regarding his safety record and did not feel that they had trust and confidence in him to safely complete his duties. While various issues have arisen in relation to the procedure adopted by the Respondent in dismissing the Complainant, and the investigation of the surrounding circumstances, the fact remains that the Complainant engaged in a task he was expressly told not to undertake. While the dismissal of the Complainant is unfair for the purposes of the present Act, the concerns articulated by the Respondent are not entirely unfounded and are sincerely held. In discussing this remedy, and mitigation in general, the Complainant stated that he sought alternative employment for a period of time and thereafter commenced a course in an entirely unrelated field. In this regard it is apparent that the parties have, in a practical context, moved on from these issues and it would be impractical to force the parties to reengage an employment relationship that one side absolutely does not consent to.  In these circumstances, I find that compensation is the most appropriate form for remedy under the Act.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. By submission, the Complainant stated that sought alternative employment in the weeks and months following his dismissal. In the regard, various job applications were opened by the Complainant demonstrating his efforts in this regard.

Having regard to the accumulation of the foregoing points, I award the Complainant the sum of €12,000 in compensation for the breach of the Act.

Dismissal, Fair Grounds, Procedure, Re-Instatement