Complainant

Respondent

Parties

Stanislav  Shabanovych

Forte Pespa

Representatives

Donal Fingleton

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00066716-001

16/10/2024

The Complainant contended that he was employed as a Fitter with the Respondent from 21 August 2023 to 16 October 2024 when his employment was terminated.  The Complainant contended that he was unfairly dismissed. 

The Respondent denied the allegations and instead submitted that the Complainant’s employment was terminated by the non-renewal of a fixed term contract.  It was the Respondent position that his dismissal was a fair dismissal and arose from issues relating to his competence and conduct. 

In his complaint form, the Complainant stated that he was unfairly dismissed on 16 September 2024 for having filmed videos and taking photos of safety violations in the workplace, to show to his manager.  He outlined that he started work on 21 August 2023 and that on 16 September 2024 he took pictures and videos of safety violations to show to his manager.  He outlined that the boss came running and said show me the video, as he had seen him taking the pictures and videos, and he told him to go home and not to work anymore, that the company would not renew his contract.  He stated that he had never been warned before that if you reported violations to the boss, that he would be asked to leave.  He stated that he thought he was fired because he was taking the videos, and she stated that he started doing this because a co-Complainant was hurt. 

Witness evidence – the Complainant:

The Complainant stated that he had taken photographs on 16 September 2024 and that he was dismissed on the same day.  He stated that his boss came to him and asked him what he was doing.  He stated that he had taken photographs to show the Manager safety violations.  He stated that the Manager then approached him and said that his contract was finished.  He stated that the Respondent position that he was not wearing safety boots was explainable as he had a problem with his leg and he had ordered new safety boots.  He stated that he found wearing ordinary boots very difficult.  He confirmed that he did receive a verbal warning but that he had never received a written warning.  He gave evidence that he had ordered the safety boots over the internet.  He also gave evidence that if he didn’t take the photographs he wouldn’t have been dismissed and that he never received any warnings via email and he understood that three such emails would be required before a dismissal. 

The Complainant gave evidence that there had been lots of incidents and accidents in the company and in order to avoid other incidents, he wanted to show his manager what safety violations were taking place and he stated that sometimes he did take photographs for him.  He stated that he believed that everybody needs to show such mistakes to the manager in order to prevent such incidents and that he believed he could not be dismissed for having taken such action.  He stated that it was not normal that if you tried to show such issues to the boss, that he would be dismissed.  He confirmed again that he had taken some photographs for the manager earlier in relation to the use of cutting devices. 

Under cross examination the Complainant confirmed that when he had commenced working with the Respondent, he had found the manager helpful and accommodating and that when he started everything went well initially and that at all times everything was normal until after the photos were taken.  He confirmed that after three months he had sought and was given the raise.   

The Respondent representative put it to the Complainant that he had had a lot of conflict with a colleague.  The Complainant denied this and stated that  he was working with a colleague who wanted to move to work with another colleague, and that he had conflict with them but that the colleague had not told him about any issues but had gone to the boss and looked for a move.  He stated that he had always helped that colleague. 

The Respondent representative put it to the Complainant that in fact he had had conflict with two different colleagues, and he stated that was not true, that one colleague had been in hospital and that was why he moved. 

He confirmed to the Respondent representative that he had not been wearing steel toe capped boots and the Respondent representative put it to him that he had received multiple warnings in relation to this safety violation.  The Complainant stated that he was not refusing to wear the boots, but that he had a problem with his leg and that was why he had ordered new boots.  The Respondent representative asked him if he accepted that he was not wearing the required safety boots and he responded that he had got a callus and that he had no boots for one or two days and when he wore the boots again, he got another callus and so he had ordered new boots.  The Complainant also stated that others were not wearing the required safety boots.  The Respondent representative outlined to the Complainant that he had in fact previously been sent home because there were boots available in the canteen and he had refused to wear them, to which the Complainant responded, yes, that had occurred because he couldn’t wear those boots as he would get a callus. 

The Respondent representative put it to the Complainant that on 14 September the Respondent had called a meeting of all staff to impress upon them the importance of PPE and that despite having been present at the meeting he had attended the very next day on 15 September not wearing boots and was sent home.  The Complainant accepted that this was correct.  It was also put to the Complainant that on 15 September he had attended work and that this was the first time he had taken photographs, and he confirmed that he did take photographs on the day.   The Respondent representative put the question again, with emphasis on the element of the question that this was the first and only time when he had taken photographs.  The Complainant responded that he had taken photographs several times and that he had sent them to his manager and he stated that he had taken photographs of the chainsaw. 

The Respondent representative asked the Complainant if he was aware that there was CCTV on the premises and the Complainant confirmed that he was aware of that as his boss had advised him of the CCTV and he stated that it was not lawful for the Respondent to watch how they were working.  The Respondent representative then asked the Complainant why he did not simply report the safety violations he observed to the Line Manager, and the Complainant did not respond to that question. 

The Complainant confirmed that he started work in August 2023 on a one-year fixed term contract up until August 2024.  He stated he did not remember the exact date.  He confirmed that he sought and received a raise after three months in employment and that for the most time everything went well.  The Respondent representative put it to the Complainant that a couple of months before the end of his contract, issues had begun to emerge with his teammates.  The Complainant responded that from the first day when he started to take photographs and to talk about problems and began taking pictures, that it was only then that the problems emerged and that the Respondent decided to fire him. 

The Respondent representative noted that the Complainant had previously said that all was okay but acknowledged that there were problems after he started taking photographs and asked which was the truth.  The Complainant responded that he had never had a problem with the Respondent, only with employees, that from the first day he had a problem with a colleague (T).  He stated that after one month there was an accident, and he got metal in his hand.  He stated that his manager talked to T and he was fired.  He confirmed that he worked as a fitter and that the fitters worked in pairs and that ultimately two co-workers had asked not to work with him and that these issues related to a poor attitude and not working as part of a team.  The Complainant confirmed that he didn’t know about his colleague (A).  He understood that it was because another colleague had started (AX) and that they normally worked together.  He stated that in the end, AX and A ended up fighting. 

The Respondent representative put it to the Complainant that A had complained about his attitude and that he was not working as part of a team.  The Complainant responded that he could not have made a complaint about him because they were still friends today and that it was his understanding that he had just decided to work with AX. 

The Respondent representative asked the Complainant if he accepted that he was working as a fitter and was engaged making metal balconies and that this was an industrial setting.  The Complainant confirmed that yes, he got a job as a fitter, but that they got him to work on the forklift as others had no licence and sometimes, he did welding.  The Respondent representative again clarified with the Complainant that he was working in an industrial setting, to which the Complainant responded, “it’s a factory”.   

The Respondent representative pressed him in terms of the industrial setting on the basis that there was an importance to the setting in relation to safety issues and while the Respondent sought an answer to this matter, the Complainant digressed to discuss the issue of not wearing safety boots.  Ultimately, he did accept that he was working in an industrial setting.

The Respondent representative put it to the Complainant that on several occasions he was called aside and asked to wear safety boots and other protective clothing, and he confirmed that this was the case.  He also accepted that in the face of those persistent requests to wear safety shoes and clothing, he did not do so in the factory.

In relation to taking videos, he confirmed that he had taken a series of photographs, all on the same afternoon of 15 September, and that he was walking a few metres away from co-workers who were operating trucks and pointing the camera at them.  The Respondent placed in evidence, still photographs from the CCTV footage and the Complainant stated that he had not put the phone in their face.  The Respondent pointed out to him that it was merely a few metres and the Complainant responded that he had made videos of co-workers because it was not safe and there were heavy windows being lifted at the time. 

The Respondent representative pointed out that the hearing was not in relation to health and safety issues, that such issues were for a different forum, and that the purpose of the hearing was to discuss the reasons for his dismissal, to which the Complainant responded, that he believed they fired him because he was making the video.  The Respondent representative put it to the Complainant that if he was so concerned about safety issues, that the more appropriate course of action would have been to say to colleagues not to do what they were doing, rather than walking around taking photographs, distracting and disturbing colleagues operating heavy machinery and thereby creating risk.  The Complainant responded that he told the workers about what wasn’t right or safe before taking the pictures. 

The Respondent representative put it to him that at least three co-workers had reported that they were distracted and felt unsafe.  The Complainant began laughing and said “I think they were lying”.  The Respondent representative put it to the Complainant that this took place the very next day after he had been sent home from work for not wearing boots and he stated that he had taken some pictures before that day and some pictures afterwards.  The Respondent asked the Complainant if it was not true that the majority were taken the day after he had been sent home, to which he responded that he did half before and half after.  He stated that he took the video because he didn’t know they were going to fire him and he wanted to show them to his boss. 

The Respondent representative put it to the Complainant that he didn’t take the pictures out of concern for health and safety, that he had shown blatant disregard for health and safety having not worn the boots, and that it was more a case of pointing to everybody else and saying “what about him, and what about him and what about him”.  The Complainant responded that at that time he didn’t even think they were going to fire him and he wanted to show his boss that he should look around everywhere and not just focus on his shoes. He confirmed that he was aware that the whole factory was covered by CCTV, but he believed that there was a need to take the video to give special attention to other staff members and not just boots, and that he didn’t know this was an issue you could get fired for.

The Respondent representative put it to him that he had been constantly warned and then sent home and yet he was saying he didn’t know it was a problem?  The Complainant responded that the boss only talked to him about the shoes but never sent an email, so he didn’t think he was serious and that he felt he had talked to him as a friend.  He clarified that he meant that he had been given friendly advice, as in, please wear your boots.  The Respondent representative put it to the Complainant that this was not credible, that he had been given clear direction and sent off duty and that could not be described as friendly advice, to which the Complainant responded, that he saw many times how other workers had not been wearing shoes but had not been fired, and if they had been, he would know it was serious.  The Respondent representative put it to the Complainant that rather than, as he portrayed himself, he had not had regard for his own or others safety.  The Complainant responded, yes, I understand, but he advised that he did not come close to anyone and that the video was taken from a distance.  The Respondent representative put it to him that he could not have it both ways, that he couldn’t be concerned about health and safety, while at the same time disregard the importance of wearing safety boots.  The Complainant responded that he did the video and pictures to show that there was a need to focus on more than just boots. 

The Respondent representative put it to the complainant that when he was informed his contract was not being renewed, he stated “that’s fine, I have another job lined up anyway”.  The Complainant responded that there had been no previous talk about his contract finishing soon, he was simply told on the day when he was dismissed.  The Respondent representative restated the question and this time the Complainant clarified that when he had been advised that his contract had expired, what he said was “then I will have to find another job”.  The Complainant confirmed that he had a hard time finding a second job because it took a long time, somewhere around two months and that it was a very difficult period for him.  However, the Respondent representative noted that he had not provided any evidence of having looked for jobs.  The Complainant then confirmed that he had screen shots to show that he had, but it was pointed out by the Respondent representative that he had not submitted any of those in evidence, to which he responded that nobody had told him to. 

The Respondent representative stated that in the current climate it was easy to get work in his area of work and the Complainant responded that it was not easy for him to get a job given his low level of English and he confirmed that he had finally found a job with An Post on the same salary. 

The Respondent representative put it to the Complainant that he was not in fact dismissed, that his contract was not renewed because of his disregard for his own safety, for the safety of co-workers and due to the conflict that had arisen with colleagues.  The Complainant responded that a month before he was fired, he received a letter from the landlord and if he really had a problem with a colleague, that would not help and that if his conduct had been poor before, the Respondent would not have waited until the end of the contract. 

The Respondent representative put it to the Complainant that he had been treated very well, that even in the face of the difficulties that had arisen, the Respondent had given him a reference and that early on in the employment had given him a raise and so he had been treated well.  The Respondent representative put it to him that the videos became the final straw in a long line of issues of concern.  The Complainant responded that the Respondent had never told him about the issues and that he would like to have a talk with the Respondent was it considered that he should wear the shoes even if his feet were bleeding.  The Respondent representative put it to the Complainant that he had been warned about not wearing the safety boots and the Complainant responded that he had seen others not wearing the safety boots and he thought maybe it was acceptable here and that if he had been threatened that he would be fired, he would have worn the boots.  He confirmed that he knew it was very important to wear the boots but that he didn’t because he had a corn.  The Respondent representative put it to the Complainant that if he had such grave concerns about health and safety why had he not made a complaint to the Health and Safety Authority.  The Complainant responded that he was not aware that he could make a complaint and that he didn’t know about such things.  The Respondent representative put it to him that he knew enough to take a complaint to the WRC and the Complainant responded that his friends had told him and that his legal adviser had told him.  He stated that he felt it was unfair to talk about his boots and not to focus on other health and safety issues.  The Respondent representative stated that there was no solicitor here today to assist him in navigating this process and that no solicitor had advised him to put forward his concerns to the Health and Safety Authority and that it was clear that he was not motivated to do so and that his concern for his co-workers had evaporated.  The Complainant stated that he was a new Complainant in this country and didn’t know all the rules and that he was simply following advice. 

Complainant closing remarks:

In summarising his case, the Complainant stated that he believed the Respondent had fired him because he had taken the video and the photographs of safety violations.  He stated that his job was simple, and some co-workers were still in touch with him but that others didn’t likehim,m and they wouldn’t work with him.  He stated that after that period he saw how accidents can happen, and he hoped that the company would fix the problems.  He stated that he talked to Mr Halpin, and he agreed that it was important to change the safety culture in the workplace.  He stated that he understood it was not in Mr Halpin’s power to change everything, and he stated that Mr Halpin came to him about the shoes and that he couldn’t wear them because he had blisters on his feet, not because it was his wish to do so.

The Respondent representative outlined at hearing that the Respondent considered the Complainants dismissal to be a fair dismissal, that it related entirely to his competence and his conduct, specifically in relation to his failure to wear protective shoes and garments and in relation to repeated interpersonal conflict with colleagues.  In that regard, the Respondent representative stated that the Complainant had received a total of three warnings. 

The Respondent representative further outlined that on 16 September he had attended the workplace and began taking photographs and videos of colleagues, without their permission, and because of his proximity to those colleagues while operating machinery, he had placed those colleagues at risk.  He outlined that the Respondent had then made the decision not to renew his fixed term contract and that the Complainant was given two weeks’ pay in lieu of notice and that it was accepted that this was done two weeks after the renewal date of the contract.  The Respondent representative confirmed that the Complainant stated work on 21 August 2023 and that his employment ended on 16 September 2024.  The Respondent representative also confirmed that no records had been kept of the warnings issue and that they had all been given in person. 

Witness evidence – Mr Sean Halpin:

Mr Halpin confirmed that he was the Production Manager at the time of the issues giving rise to the instant case, and that he was now working as the Director of Operations with the Respondent.  He confirmed that he could not recall the exact dates of the Complainants employment but that he had noted in the documentation that it ended around the end of October 2024.  Mr Halpin gave evidence that there were four employees who all started around the same time, and that the Complainant had adapted the fastest to the environment and would often lead others.  He stated that in that context, when he approached and asked for a pay rise, it was considered reasonable to accede to that request.  Mr Halpin confirmed that the company was a relatively new company and that they were adapting as they were growing and he acknowledged that the Complainant had helped the company improve their methodology and that some of the procedures he had introduced were still in use.  He confirmed that the company manufactured prefabricated balconies (for the side of apartment blocks) and he stated that normally fitter employees worked in teams of two, assembling lengths and that at the end of a full day, they would have constructed a full balcony.  He stated that forklifts were used for lifting everything.  He confirmed that the company had a set of health and safety policies, that there was a requirement to comply with health and safety within the contract and within the handbook and that terms and conditions of employment were given to employees at the outset and that they always had conversations in relation to safety in the workplace.  He stated that at the outset, the Complainant was compliant with health and safety but over time his interest in maintaining standards diminished. 

Mr Halpin stated that there were multiple complaints about the Complainant from colleagues and that it became very clear that the person working with him was having to do too much, that one person was doing 99% of the work while the Complainant was standing back from the work and he stated that it was simply not fair.  He stated that Artem had started working with the Respondent as a result of the Complainant having introduced him and that he had employed Artem as he trusted the Complainant’s judgement.  He stated that he had put the Complainant working with Artem because of his lack of English where Artem had a reasonable standard of English.  He stated that initially all went well but that on one day there was an altercation between them, that he tried to resolve the matter between them, but that Artem came and asked to change and not to work with him any longer.  He stated that he facilitated Artem’s request and the Complainant was then put working with a new teammate but that that person wasn’t happy to work with the Complainant from the outset.  He stated that he asked him to try it out and they had worked together for a short period of time, but that the individual (Alex), was still not happy. 

In relation to the wearing of safety boots, Mr Halpin stated that initially he had called the Complainant aside and given him friendly advice about the wearing of safety boots.  He stated he had pointed out the requirement set out in the handbook to comply with safety regulations and the wearing of PPE.  He stated that he raised the issue in meetings in the factory, that it was a constant discussion and that there were multiple conversations about using PPE.  He stated that he persistently called meetings in the factory when he saw people not wearing the safety boots.  He stated the day after he had called the most recent meeting in the factory, the Complainant attended the workplace not wearing the boots.  He stated that he was very stern with him and very direct and he explained to him that wearing PPE was absolutely paramount and yet again the next day he saw him without the boots.  He stated the Complainant was obviously not listening to direction and he was very disappointed, and he sent him home.  He stated that that was on a Friday.

Mr Halpin confirmed that on the following Monday at around 11:00am, the Line Manager saw the Complainant with a camera and that initially he thought he was messing. He stated that on two occasions that day, staff complained about the Complainant and that as a result he checked the CCTV and there were multiple examples of the Complainant walking up to record employees in close proximity.  He stated that colleagues were concerned about why an employee was taking videos of them and they were concerned about their image being on another person’s phone.  Mr Halpin stated that the Managing Director spoke to the Complainant before lunch and advised him to cease taking photographs, however the photographing continued after lunch.  He stated that when the Complainant was asked why he was continuing to take photographs without permission, he gave a blunt response which led to the decision to not renew his contract. 

Mr Halpin stated that his behaviour had had a huge impact in the workplace and that when he was told his contract would not be renewed, he sniggered and said that he had another job.  Mr Halpin confirmed that initially there was not an intention to terminate his employment but given his very blunt response to being questioned about the photographing, the decision was made not to renew the contract. 

Under cross examination the Complainant put it to Mr Halpin that he sometimes attended work without wearing safety boots and Mr Halpin responded that he did not work in the factor area but rather he worked in the office.  He stated that there was no need for him to be there in the factory as he was a supervisor. 

In relation to the contractual arrangement, he confirmed to the Complainant that he had refused to sign for receipt of the rules.  The Complainant put it to Mr Halpin that when the inspector was in he had agreed that the Complainant and Artem would use the forklift because they had licences and Mr Halpin responded that in fact eight staff were employed who had a licence and that it was appropriate for any one of them to operate the forklift.  The Complainant again put it to Mr Halpin that he had used both himself and Artem to drive on that day because the inspector was in and Mr Halpin responded that yes, he had asked the Complainant and Artem on that day because they were short of staff on the day.  Mr Halpin accepted that there was various conflict in the workplace, not just between the Complainant and his colleagues, but also between Alex and Atem.  He stated that Artem is generally a very quite person, that he came to the office and said he didn’t want to work with the Complainant any longer and that after that he had worked with Alex.  He stated that after that there had been conflict between Alex and Artem but that it was a separate family matter and nothing to do with the workplace. 

The Complainant showed a picture of the use of the forklift which he had taken, and he asked Mr Halpin if he accepted that it was a violation of safety rules and Mr Halpin confirmed that it was.  Mr Halpin also said that he knew of a photo that was in existence that the Complainant did not take which he indicated was in relation to the Complainant’s breach of safety regulations.  The Complainant asked Mr Halpin if he agreed that he had notified him of a broken saw and Mr Halpin confirmed that he did not recall but that he was sure if the Complainant said that he did, that he had done so. 

The Complainant put it to Mr Halpin that he had asked him to work one day per week as a welder and that he had a contract as a fitter, and he asked why this was the case.  Mr Halpin confirmed that it was a small company and that in general employees chipped in. 

Respondent closing remarks:

In his closing remarks the Respondent representative stated that the evidence of the Complainant was that he was warned on numerous occasions about wearing PPE and that he continued to disregard the regulations.  He noted that the Complainant had accepted that he was sent home due to his failure to comply with the safety regulations.  He noted further that Mr Halpin had given evidence about numerous discussions with the Complainant about PPE and that in fact a few days before the Complainant was dismissed, a meeting had taken place with all staff to emphasise the importance of PPE and notwithstanding that meeting, the Complainant attended the following still not wearing his PPE.  He stated that there was ample evidence of the Complainant’s attitude and of his interpersonal conflicts with colleagues.  He stated that several complaints were made that the Complainant was not pulling his weight.  He stated that on 16 September there were a number of reports from staff who were most unhappy that the Complainant was taking video recordings of them without their permission at work and the staff raised safety concerns in relation to the proximity of the Complainant to them while they were operating heavy machinery.  He stated there was uncontroverted evidence that this was the case and that it had not been challenged by the Complainant.  He stated that it was clear that the Complainant had been dismissed for his failure to not wear PPE and that this was considered to be gross misconduct.  He stated that section 6 of the Unfair Dismissals Act provided for the dismissal of an employee in the context of conduct and competence. 

In relation to redress, the Respondent representative stated that the Complainant had not provided sufficient evidence that he had been seeking alternative work and that ultimately he had achieved full employment two months later on the same terms of employment and that there was not adequate notice of proper or meaningful search for alternative work and he was of the belief that in the current climate, the Complainant could have obtained work far sooner.  In all the circumstances the Complainant representative outlined that the Adjudication Officer should find that the Complainant was fairly dismissed, however in the alternative, should the finding be that it was an unfair dismissal, that the Adjudication Officer should be mindful of the lack of evidence of the Complainant’s attempt to mitigate his loss, when making any reward. 

I have given careful consideration to the submissions provided by the parties, together with all supporting documentation, and to the case law relied upon by the parties.  I have also taken account of the witness evidence given under oath/affirmation and have made my own enquiries in order to fulfil my obligation to fully investigate the matters before me.

In the first instance, I consider it important to clarify the role of the Adjudication Officer in relation to a complaint of unfair dismissal.  In this regard I rely upon the established case law which has determined that the role of the Adjudication Officer is not to determine whether or not the Complainant did or did not carry out the act of which he/she was charged but rather to establish if the Respondent has proven that the dismissal was not unfair and in so doing to determine if the decision to dismiss was a proportionate response and within the band of sanctions which could be imposed by a reasonable employer.  In such circumstances I will not seek to determine if the Complainant acted as alleged by the Respondent, but rather I will seek to determine if the Respondent has proven that the dismissal was fair and proportionate in all the circumstances of this case.

In that regard I will consider each of the following:

·       Procedural Fairness

·       Proportionality/Reasonableness of the decision to dismiss

Procedural Fairness

I note that the Complainant’s one year fixed term contract commenced on 21 August 2023 and would therefore have been due to expire on 2 August 2024.  I note that the contract was not ended or extended at that time and the Complainant remained in employment.  In these circumstances I do not accept the Respondent position that the termination of employment was in any way related to the ending of a fixed term contract.

I note that there was no dispute between the parties that the Complainant was called into a meeting with Mr. Halpin on 16 September 2024 and his employment was terminated.  I note that the Complainant was not advised in advance that he was being invited to a disciplinary meeting, his alleged misconduct was not notified to him and no prior indication was given that the matters to be discussed had the potential to result in his dismissal.  In addition, the Complainant was not given the right to be represented, nor was he given any opportunity to appeal his dismissal.

Where on-going performance issues are addressed by an employer there is a clear requirement to manage and address such issues within the progressive stages of a disciplinary procedure and while there was evidence of previous conversation with the Complainant in relation to his lack of team working and his breaches of safety standards, it is clear that these conversations were never formalised and no formal warnings were issued.

Where an employer has a concern in relation to serious misconduct such a concern requires thorough enquiry/investigation by the employer, providing the Complainant with the opportunity to state his account of events.  While the Respondent was clearly concerned about the behaviour of the Complainant in relation to the risks posed by him photographing colleagues at work, this matter was not investigated by the Respondent.  It is evident that, following receipt of complaints from co-workers and a review of cctv footage, the Respondent moved to immediately dismiss the Complainant

Proportionality/Reasonableness of the Decision to Dismiss

In assessing the events that lead to the Complainants dismissal it is clear to me that the Respondent had made efforts to ensure safe practices in the workplace and that as a fledgling company making and sustaining improvements was paramount.  It is also clear that the Complainant disregarded the rules and attended the workplace without wearing the appropriate safety footwear and was clearly told about the requirement to do so.  It is clear also that on 14 September the Respondent became concerned about the level of non-compliance with this requirement and called a staff meeting to impress on staff the importance of wearing safety footwear, yet on 15 September the Complainant attended work without the requisite boots.  In the circumstances, the Respondent sent the Complainant home and advised him not to attend without the required footwear.  I consider the Respondent actions, in this regard to be not only reasonable, but advisable.

There is ample evidence that the Complainant was proving difficult in the workplace in terms of his interactions with co-workers and in terms of him not carrying his share of the workload, and this manifested itself in terms of other staff asking to be transferred away from working in a team with him.  In a small company it is not difficult to imagine how this would have created operational challenges.

There is also ample evidence that the Complainant was taking photographs and video footage with his phone, in the vicinity of other workers who were using a forklift carrying a heavy load.  While the distance between him and the machinery was in dispute, it is obvious that he should not have been photographing colleagues without their agreement, and more importantly, he should not have put himself in the area where he was a cause of distraction to staff operating heavy machinery.  I have concluded that in such circumstances any reasonable employer would have considered this behaviour as legitimate grounds for dismissal.

Based on all the above, I find that the Respondent did not engage in an appropriate procedure to address the issues of concern in relation to the Complainant, notwithstanding the actions of the Complainant that ultimately resulted in his dismissal.  In these circumstances I find that the Complainant was procedurally unfairly dismissed but that his own behaviour was a significant contributing factor in his dismissal.  I have taken this into account in awarding redress under the Act.  I have also taken account of the Complainants lack of evidence that he made efforts to mitigate his loss and his evidence that he secured employment on similar terms within a 2-month period.

Based on the foregoing I find that this complaint is well founded, and I direct the Respondent to pay the Complainant €1000 as compensation for the breach of the Act.

Unfair dismissal