Complainant

Respondent

Parties

Edson  Simoa De Morais

Als Loughrea Omac Laboratories Limited

Representatives

Emer Feeney

BL Ryan and Co. Solicitors

Robin Hyde

Alastair Purdy LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00058962-001

21/09/2023

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

CA-00058962-002

21/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00058962-003

21/09/2023

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

CA-00058962-004

07/12/2023

The Complainant was a Team Leader with the company. He was employed from 15th July 2015 until 22nd April 2023.

CA-00058962-001

The Complainant was employed as a Laboratory General Assistant on 15th July 2015. He was promoted to weekend Shift Team Lead on 5th March 2017. He claims he did not receive a written statement of his revised terms and conditions of employment and details of his responsibilities as Team Lead despite requests.

CA-00058962-002

The Complainant was unfairly dismissed after eight years of service. He had never previously received a written warning. He was dismissed without consideration of the proportionality of the dismissal and a lesser sanction.

He is non-national and English is not his first language. He was dismissed on 22nd April 2023 due to misuse of firm’s property, taking additional breaks from work, endangering the safety of others, non-observance of health and safety standards, negligence in fulfilling duties of Team Leader role, and improper behaviour towards colleagues. Attending in the first aid room in his uniform was found to be a hazard, it was also held to cause lead contamination to the first aid room although there was other traffic through the room, and there is no way to establish how this was caused.

On 7th January 2023, the Complainant was using the toilet in the first aid room when a colleague called to the door. She did not say a word to him directly, then reported this to HR and management and told other employees. The Complainant was contacted by his supervisor that day in relation to the report. On 9th January 2023 he sent an email to his colleague telling her he found her behaviour unprofessional and would report this to HR.

On 23rd January 2023, he was accused of misuse of firm’s property, taking additional breaks from work, negligence in fulfilling duties of Team Leader role, and improper behaviour towards the colleagues who reported him. His email of 9th January 2023 to his colleague was deemed to be improper behaviour and abusive. The Complainant says he had a verbal agreement with his Supervisor that he could take his breaks in the first aid room, as he was consistently doing overtime.

The Complainant had a meeting with HR, and a further meeting on 30th January, 2023. He was informed on 22nd April 2023 more complaints were made, that he took extended breaks, and endangered the safety of others contaminating the first aid room by not removing his PPE and uniform. The Complainant does not accept he caused contamination of the first aid room as it was used by many others and denies the allegations. He was dismissed on 22nd April 2023 without consideration of a lesser sanction. The Complainant said the collection of mandatory blood tests are the responsibility of his Supervisor and he did bring it to the attention of management on many occasions. This allegation was not upheld on appeal. His appeal was unsuccessful.

The Complainant had a good history with the company. He was promoted to Team Leader in 2021, his flexibility, attitude, efficiency and commitment was recognised and he worked across all departments. He was given a pay rise two days before the incident on 7th January 2023.

The Complainant says the culture in the company of compliance with health and safety is not as exacting as the company now presents, and many employees used the first aid room and toilet. There was traffic going through the first aid room.

He says the Laboratory General Manager used the first aid room for a meeting with him in 2022. He says he was never asked to remove his uniform and PPE at the time, and no comment was made about contamination. The evening shift Supervisor moved between various prohibited areas in his PPE which could be contaminated by lead and never removed it. He is still employed. All fire assay staff and non-fire assay staff shared locker rooms, and all of their uniforms were washed in the same washing machines. The rule about moving in different areas without PPE was not enforced. The Complainant says the toilet in the first aid room was in general use and was used by staff in their lead PPE.

The Complainant says he used the first aid room for going to the toilet, and making phone calls on occasions. He did not use it for sleeping. He was not told he could not use it and there were no signs up saying it could not be used. The Complainant complained about other employees taking breaks and not attending work through 2021, which caused him additional stress as he covered their absences. However, no disciplinary action was taken or meeting arranged with the staff to discuss this until March 2022 and no action taken against the staff involved. He tried to get cover and if this was not possible, he worked the extra hours.

There was an issue with staff who did not attend their mandatory blood tests. It was the Complainant’s job to facilitate the tests, but he did not have the authority to take action if they did not attend other than to inform management. It was established on appeal that he did not have responsibility to ensure other employees had blood tests, other than facilitating his own team’s blood tests.

The Complainant brought a number of health and safety issues to the attention of management. There was an incident in February 2020 when a bucket was left on a high steel frame in the digestion room. It was raining heavily and there was damage to the roof. It should have been removed. The bucket fell when it was full of rain contaminating samples. Staff were working with very dangerous acids Hydrochloric Acid and Hydrofluoric Acid at the time. It was investigated by maintenance staff and was downgraded from an incident that would potentially have catastrophic consequences for personal injury. It was downgraded on the portal to moderate, and the person responsible was not sanctioned, and was promoted.

On 27th October 2022, the Complainant notified management that he had seen a member of staff in the digestion room pour acid down the sink. The person was not wearing a protective mask from the fumes and had not diluted the acid with water as required. He asked whether the individual had received training. The response he received was staff would be reminded about the correct procedure through a toolbox talk, and that all staff had received training. The response from another staff member questioned if he was correct, saying as an experienced member of staff he had a duty to show other staff the correct procedure, trying to blame him for not getting involved. The Complainant was not present but had seen this through the window. He pointed out it was not his job to explain to staff how to do their job properly and says no supervisor was present. The General Manager intervened to say this was not the correct way for the Complainant to report this or to request Ms. Fahy from Health & Safety to attend the plant on a Saturday. On 12th November 2022, the Complainant was visited by Ms. Fahy’ Supervisor and the next level Supervisor and told to limit his vigilance to his own department. The response to the Complainant would not encourage further reporting of safety issues.

The Complainant was subjected to unfair treatment in the workplace as he was the only member of staff who had to obtain agreement from two Supervisors in order to take time off.

The Complainant feels that he was singled out and his dismissal was excessive and unfair. It took place at a time when his stepfather was dying abroad and had a significant impact on him. He says proper procedures were not adhered to by his employer in the investigation of the allegations .

The Complainant submits it is not the function of the Workplace Relations Commission to establish the guilt or innocence of the employee, rather it is whether a reasonable employer in the circumstances and position of the Respondent would have done the same. The burden of proof is on the employer to show the dismissal is fair and fair procedures were used. The Complainant says the procedures used do not comply with SI 146 of 2000 1990 Industrial Relations Act (Code of practice) (grievance and disciplinary procedures) Declaration Order 2000.

The Complainant was called a number of times on the issues before he was informed of the allegations against him. Some of the statements were never put to him nor put to him in a manner he understood. He did not have the opportunity to question the Complainant, nor speak to other employees to put together a full defence. The Complainant has a right to a fair and impartial determination of the issues. The Complainant should have had the right to representation as his job was in jeopardy. The Complainant was burnt out due to overwork and staffing issues as a Team Leader. It was a box ticking exercise and was predetermined. It did not take into account the Complainant’s situation and was unfair. The Complainant relies on the ruling in Woodies DIY Ltd v Ikoro Labour Court UDD1739 that the Investigation was inadequate and did not take into account the transgressions of his colleague from fire assay in the Digestion area. The Complainant’s colleagues did not feel comfortable attending an investigation with him previously. The investigator was hostile and did not take into account he is not a native English speaker. The sanction was disproportionate and relies on the decisions of the EAT in Michael McCrann v Marks and Spencer Ireland Limited [2014] 3/2013 and Janet Mooney v Oxigen Environmental [2014] UD1525/2012.

The Complainant had difficulties finding another job due to the manner of his dismissal and impact on him.

CA-00058962-003

The Complainant alleges that he has been discriminated against by the Respondent on grounds of race on 22nd April 2023.

The Complainant says another shift Supervisor is still working for the company whose negligence was even greater and a greater risk of possible contamination by not removing his PPE and uniform. Negligence of the Supervisor was reported with evidence of his presence in a restricted area, but he is still working for the company.

Three other employees with many absences were given many chances to improve and did not improve. The Complainant worked for eight years, was flexible and committed to the company.

The Respondent raises a preliminary issue in relation to the claims.

The Complainant made a complaint of unfair dismissal on 21st September 2023 under the Unfair Dismissals Acts 1977. He submitted a second complaint of unfair dismissal under the Protected Disclosures Act 2014 on 7th December 2023 which was outside of the required six-month statutory period. The initial complaint did not make any reference to a protected disclosure.

The Complainant also made a complaint of discriminatory dismissal under the Employment Equality Acts 1998. Section 101(4A) of the Employment Equality Acts 1998 stipulates that a Complainant lodging dual complaints under both the 1998 Act and the 1977 Act must elect their preferred avenue of redress. Failure to make this election within the prescribed timeframe necessitates the withdrawal of the complaint under the 1977 Act.

The Respondent says the Complainant has failed to establish a prima facie case in accordance with Section 85A (1) of the EEA and rely on the decision in Melbury v Valpeters EDA/0917. The Complainant has not provided any evidence of any alleged discrimination. He has not provided any dates, the types of communication made or by whom they were made that could amount to discrimination on the grounds of race. Nor did he raise a grievance that he had been subject to discriminatory treatment.

CA-00058962-002

The Complainant was employed from 2nd April 2012. He was a Fire Assay Team Lead responsible for overseeing daily activities within the department, managing staff, adherence to health and safety protocols among staff, ensuring staff compliance with Quality Management System procedures and controls as per ISO17025 standards and other tasks. The work requires interaction with hazardous chemicals Lead Flux, Nitric Acid, Silver Nitrate, Anhydrous Borax, Litharge and Potassium Nitrate, requiring the use of PPE and strict adherence to health and safety protocols.

Fire Assay workers are required to adopt safe working practices to minimize lead exposure. Lead dust can settle on surfaces, clothing, and hands, contaminating anything touched. The Complainant underwent a decontamination procedure in the workplace, removing all personal protective equipment, placing all contaminated clothing, including shoes in a designated locker area. He was required to wash his hands and face before eating, drinking, or smoking, and to change out of his work clothes, shower, and change into street clothes before leaving the workplace. The Complainant had First Aid training in 2017 and completed lead control training on 1st April 2021.

On 7th January 2023 another Team Leader reported an incident.  She was unable to access the first aid room due to the door being locked from the inside. After several attempts to gain entry by knocking, the Complainant opened the door and informed her he had been using the room for sleeping. Following receipt of the Team Leaders report, IT conducted a review of the Complainant's badge activity. This showed between 1 October 2022 and 7 January 2023, the Complainant accessed the first aid room for a total duration of 12 hours and 55 minutes. On 9 January 2023, the Complainant contacted his Team Leader to question why his colleague reported the incident. He expressed dissatisfaction, noting the absence of signs prohibiting the use of the first aid room for sleeping. Furthermore, the Complainant threatened to report the person for "unprofessional conduct" and advised her to "know how to behave" in such situations.

On the 23 January 2023, the Complainant was invited to an investigation in relation to allegations that he was found using the First Aid room for non-medical purposes, such as using the bathroom, making personal phone calls, and on one occasion, falling asleep, extreme or persistent negligence in duties, and serious breach of terms and conditions of employment. It was also alleged the Complainant failed to coordinate mandatory blood lead testing for his team, neglected his responsibilities as a Team Lead, the Complainant failed to report a health and safety incident, taking extended breaks from work in the First Aid room for in or around twelve hours and fify-five minutes in accordance with the badge activity report and improper behaviour to a colleague. The Complainant’s email to the other Team Leader of 9 January 2023, was deemed to be inappropriate and contrary to the Dignity at Work Policy.

The Complainant accepted he used the first aid room for personal use, and did not remove his PPE and uniform contaminating the clean room with lead. Swab tests confirmed the presence of lead in the room. No other member of the fire assay team used the first aid room from 22 October 2022 until 7 January 2023. The information was shared with the Complainant. He was invited to an investigation meeting on 24th March 2023. Two additional allegations were added of endangering the safety of others and non-observance of health and safety standards, instructions, and protocols. All allegations were upheld.

The Complainant was dismissed due to gross misconduct on 22nd April 2023. The manager concluded dismissal was the appropriate sanction, considering the Complainant’s seniority, lack of remorse, lack of responsibility and breakdown in trust and confidence. The dismissal was upheld on appeal.

The Respondent denies an unfair dismissal and says the dismissal was due to gross misconduct. They complied with fair procedures, the dismissal was proportionate and reasonable. They rely on S 6 (4) (b) of the Unfair Dismissals Act 1977 when an employee is summarily dismissed on the grounds of misconduct, the dismissal shall be deemed not be unfair where there are substantial grounds to justify same.

They rely on the Labour Court decision in Permanent TSB PLC v Christopher Callan UD/18/227 which noted the decision in Noritake (Irl)Ltd v Kenna (UD 88/1983): 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? This is an objective test. It is a test of what a reasonable and prudent employer would have done in the circumstances. They submit the role of the adjudication officer is not to assume the role of the employer. It is to decide whether within a band of reasonableness the decision was fair or unfair relying on Bank of Ireland v Reilly [2015] IEHC 241. Mr. Justice Noonan said:

“That is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

In addition, the action of the Complainant meant the room became contaminated with lead. The first aid room is used in cases of injury and by pregnant workers needing rest. Exposing individuals to lead contamination poses significant health risks, including potential risks to pregnancies.

The Complainant is put on full proof of his mitigation of financial loss. Without prejudice to the foregoing, the Respondent submits the Complainant contributed 100% to his dismissal.

CA-00058962-001

The Respondent provided copies of the employment contracts issued to the Complainant during his employment and asserts that it has fulfilled its obligations under the 1994 Act and is not liable for the complaint. The complaint falls outside the six-month time limit under Section 41(6) of the Workplace Relations Act 2015 as the complaint should have been issued within 6 months from the commencement of employment in 2012.

I heard and considered carefully the submissions of the parties and evidence of the witnesses.

The Complainant is non-national. He worked for the Respondent for eight years and was promoted to Team Supervisor in 2017.

CA-00058962-001

The Complainant claims a breach of S7 of the Terms of Employment (Information) Act 1994 as he did not receive a copy of his terms and conditions. The Respondent never clarified if the Complainant required an interpreter to understand the terms of his employment. He did not receive revised conditions when he was promoted in 2017.

The Respondent provided copies of the employment contracts issued to the Complainant and asserts it has fulfilled its obligations under the 1994 Act and is not liable for the complaint. The complaint falls outside the six-month time limit under Section 41(6) of the Workplace Relations Act 2015 as the complaint should have been issued within 6 months from the commencement of employment in 2012.

The obligation under S 7 of the Act is an ongoing obligation. The Complainant was provided with temporary contracts, fixed-term contracts and written changes to his terms and conditions on occasions by the Respondent and when in relation to his promoted to Team Leader in 2021. All written terms and conditions have been signed by the Complainant. I find the complaint is not well founded.

CA-00058962-002

The Complainant claims he was unfairly dismissed for gross misconduct on 22nd April 2023. He made a complaint of unfair dismissal on 21st September 2023 under the Unfair Dismissals Acts 1977. He made a second complaint of unfair dismissal under the Protected Disclosures Act 2014 on 7th December 2023, outside of the required six-month statutory period.

The Respondent has made submissions and given evidence on the detailed health and safety requirements of the Fire Assay Team of which the Complainant was Team Leader, in management of lead and other dangerous chemicals used. There were strict hygiene protocols in place for staff due to the risks from lead dust which is a carcinogen and other chemicals, requiring use of PPE, requirement to wash hands, change out of PPE for breaks, use of locker rooms for PPE, mandatory showers for staff before leaving each day and changing into their day clothes from their uniform and PPE. The Complainant had trained in first aid and had access to the first aid room.

The Disciplinary Policy of the Respondent provides non-observance of company standards, instructions or other protocols on site is serious misconduct. Grounds for gross misconduct include extreme or persistent negligence in duties, or an act that endangers the safety of others. Evidence has been provided of training on lead control which the Complainant received in 2021.

The Complainant was well regarded as Team Leader. He received a pay increase in early 2023. On 7th January 2023, a colleague complained to management that she was unable to access the first aid room for a member of staff, and the Complainant informed her he was asleep. The Complainant sent an email to his Team Leader colleague who reported the issue on 9th January 2023. He said he was on his break in the first aid room, that she should have reported it to him, it was not professional of her to report it to others and saying he would report her to HR. The Respondent carried out a review of badge access to the first aid room which was limited. It showed the Complainant accessed the room from October 2022 until 7th January 2023 for twelve hours and fifty-five minutes. He was the only member of the fire assay team who accessed the first aid room during this period.

The Complainant was notified of an investigation into allegations of misuse or misappropriation of the firm’s property or equipment, extreme or persistent negligence in duties, serious breach of his terms and conditions and improper behaviour to customers, suppliers, contractors or other employees. On 30th January 2023, the Complainant was notified of two additional allegations against him of an act that endangers the safety of others and non-observance of company standards, instructions or other protocols on site as the first aid room was found to be contaminated with lead. The Complainant was given the right to bring a colleague as a representative to the Investigation and Disciplinary meetings.

The Complainant admitted he was wearing his PPE in the first aid room. The Complainant said he was not aware that the first aid room could not be used for access to the toilet. There was no sign saying that access was prohibited, and the room was accessed by many other staff. The General Manager gave evidence of a conversation with the Complainant on the unauthorised use of the first aid room in March or April of 2022. Access to the first aid room was then limited by the Respondent.

The Complainant submits that he was burnt out from working extra hours covering absent staff which was an ongoing problem. He has given evidence of emails raising various concerns regarding  non-compliance of the Respondent with health and safety requirements. The Respondent was required to purchase food containing dairy and fibre for fire assay staff to have before work to assist in preventing lead ingestion, however frequently there were no items available for staff. On another occasion, showers were not available for staff. He reported another concern in October 2022 regarding a new employee in the digestion room who was disposing of acid down a sink without dilution correctly, with a colleague present who was not wearing a mask required to protect against the fumes. He felt his input was not appreciated and was questioned why he did not address the issue when he saw it. The Complainant said he saw it through the window. It resulted in a visit from a number of senior management in November 2022, and says he was directed to channel his vigilance to his own area.  The Complainant submitted a picture of his Supervisor who was present in the digestion room in his PPE which gives rise to a serious risk of cross-contamination and impact on female staff employed. He says no action was taken against his Supervisor who remains employed. In addition, he was required to carry out work for which he was not properly trained.

Two of these matters were reported by him separately as whistle-blowing concerns through the Respondent’s policy. The Complainant submits given the culture of the company was not as exacting in relation to health and safety compliance and his excellent record an alternative sanction should have been considered.

The Respondent says the Complainant had a responsibility to report and breaches of compliance with Health and Safety and failed to report some of the breaches now raised. These matters are not relevant to his dismissal which is specifically linked to breaches of health and safety protocols. They were not raised as a grievance.

The Complainant received comprehensive health and safety training in his employment. He was required to pass this training in order to continue to work. Although he is non-national and English is not his first language, he never raised any concern about his role or understanding of issues at any time during his employment. He commenced employment on a temporary contract and was subsequently promoted to Team Lead.

During the Investigation, the Complainant accepted that he used the first aid room for additional breaks and the toilet for almost thirteen hours over a three month period. He was suffering from grief at the time. At the hearing, his representative submitted that he was authorised by his Supervisor to use the first aid room for additional breaks. No evidence was produced by the Complainant to substantiate this. He said he wore his PPE in the first aid room, and no one had told him not to do this.  During the investigation, the Complainant did not accept there was an issue with his email threatening to report his colleague two days after she reported his use of the first aid room. He said his colleague was telling others what occurred, and this was reported back to him by other staff.

I heard evidence from the Disciplinary Officer Mr. O’ Neill regarding his decision to dismiss the Complainant. He said the Complainant knowingly contaminated the first aid room with lead, following extensive training and it was for that reason he did not consider any lesser sanction.

I am fully satisfied there were substantial grounds for the Complainant’s dismissal due to his conduct and failure to comply with health and safety protocol following extensive training. The actions of the Respondent in dismissing the Complainant fall within the band of reasonableness of a reasonable employer in dealing with the conduct of the Complainant in accordance with the decision in Bank of Ireland v Reilly [2015] IEHC 241.  Pursuant to S6 (4) (1) (b) of the Unfair Dismissals Act 1977 the Complainant’s dismissal was due to his conduct, and I find the dismissal to be fair.

CA-00058962-003

The Complainant has withdrawn his complaint of discrimination.

CA-00058962-004

The Complainant lodged a complaint of unfair dismissal pursuant to the Protected Disclosures Act 2014 outside of the statutory period of 6 months.

The Complainant representatives say the Respondent was on notice of this matter, as a report was made through the company channels regarding the incident in October 2022 relating to the acid being poured down the sink and the Supervisor of the Complainant being in the digestion room in his PPE on 18th April 2023.

Correspondence from the company has been submitted confirming the matter has been investigated. Given my decision in CA-00058962-002, I find this complaint not to be well founded.

CA-00058962-001

This complaint is not well founded.

CA-00058962-002

I find the dismissal to be fair.

CA-00058962-003

The Complainant has withdrawn his complaint of discrimination.

CA-00058962-004

Given my decision in CA-00058962-002, I find this complaint not to be well founded