Keelings Logistics Solutions (Represented by Irish Business and Employers' Confederation) v Arlandas Kepenis (Represented by Services Industrial Professional Technical Union)

JurisdictionIreland
CourtLabour Court (Ireland)
Judgment Date29 January 2020
Judgment citation (vLex)[2020] 1 JIEC 2912
Docket NumberFULL RECOMMENDATION DETERMINATION NO.UDD206 ADJ-00002624 CA-00003646-001

Labour Court

FULL RECOMMENDATION

UD/19/83

DETERMINATION NO.UDD206

ADJ-00002624 CA-00003646-001

PARTIES:
Keelings Logistics Solutions (Represented by Irish Business and Employers' Confederation)
and
Arlandas Kepenis (Represented by Services Industrial Professional Technical Union)
DIVISION:

Chairman: Ms Jenkinson

Employer Member: Mr Murphy

Worker Member: Ms Tanham

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

SUBJECT:
1

1. Appeal of Adjudication Officer Decision No. ADJ-00002624 CA-00003646-001.

BACKGROUND:
2

2. The Worker appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 8 (A) of the Unfair Dismissals Act, 1977 to 2015 on the 10th April 2019. A Labour Court hearing took place on the 14th January 2020. The Adjudication Officer found that the complaint of unfair dismissal was not well—founded. The following is the Determination of the Court:-

DETERMINATION:
3

This is an appeal by Mr Arlandas Kepenis against the Decision of an Adjudication Officer ADJ-00002624, CA-00003646-001 under the Unfair Dismissals Act 1977 – 2015 (the Acts) in his claim of unfair dismissal against his former employer, Keelings Logistics Solutions. The Adjudication Officer held that the complaint was not well-founded. Mr Kepenis is appealing that Decision and is seeking to be re-instated.

4

The Complainant referred his claim to the Workplace Relations Commission on 4th April 2016. Due to a personal injuries claim being pursued by the Complainant, the Adjudication Officer's hearing was adjourned on two occasions. On 6th September 2018, the Adjudication Officer hearing took place, and her Decision was issued on 12th March 2019. The Complainant appealed the Decision on 10th April 2019.

5

For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Arlandas Kepenis will be referred to as “the Complainant” and Keelings Logistics Solutions will be referred to as “the Respondent”.

Background
6

The Complainant was employed by the Respondent as a Warehouse Operative based at its warehouse in Ballymun, from 14th July 2010 until 17th November 2015, when his employment was terminated.

7

The Respondent is a subsidiary of Keelings Group which comprises a number of separate business units in growing, purchasing, sales and distribution of fresh foods and flowers in Ireland, Europe and Asia. It provides a logistics service to Tesco Ireland, delivering chilled and frozen products to the Tesco stores network in Ireland. The Distribution Centre is located in Ballymun.

Summary of Key Events
8

On 15th October 2015 an incident took place on site where the Complainant alleged that he injured himself when the machine he was driving collided with the machine driven by his colleague. As is standard practice the matter was investigated. The CCTV footage of the incident was examined and statements were taken from the Complainant and relevant witnesses.

9

The following facts were established by the investigation:-

• a. The Complainant and his colleague were unloading a trailer.

b. The trailer was lower than normal which meant the pallets could not clear the buffers at the loading bay.

c. The colleague went to inform the Manager of the problem and seek assistance. He sought a forklift truck to take the pallets off the trailer. The Complainant remained at the bay.

d. The Complainant bent over and manually moved the pallet.

e. The Complainant got back on his machine and lifted the pallet off the trailer.

f. When the colleague returned his machine hit the Complainant's machine. The colleague described this as “ a very small collision

g. Neither employee reported the collision at that time.

h. Later during that shift the Complainant, the colleague and another employee were approached by a manager who asked them to return to work. At this point the Complainant reported the collision and claimed he was in pain as a result.

10

An investigation was carried out by Mr Séamus McGoldrick, Warehouse Team Manager who concluded that on the balance of probability the injury the Complainant reported was more likely caused by the Complainant not following his health and safety training and attempting to physically lift a pallet rather than due to the collision between himself and his colleague. Mr McGoldrick recommended that the matter be put forward for formal disciplinary hearing. Mr Alan Morrissey, Shift Operations Manager, held a disciplinary meeting on 12th November 2015 and concluded that there was no other option than to dismiss the Complainant for his disregard of health and safety procedures.

11

In his letter to the Complainant, he stated:-

• “ l have taken the time to review your file and l note that you have received disciplinary sanctions in the past in relation to health and safety related matters. In fact, you are currently on a Final Written Warning due to a breach of Health and Safety which was issued to you in August this year. I cannot ignore the fact that you seem to have no regard for the Health and Safety procedures on this site and despite receiving sanctions already in this regard you will still ignore the rules”.

12

And further…

“You have once again shown blatant disregard for Company policy and for Health and Safety procedures and despite being warned formally in the past have continued to behave in a manner that is not acceptable.”

13

And further stated…

• “ I find that suspension would not be sufficient sanction, given the fact that the issues that gave rise to this process are so significant and can no longer be sustained by the company with no assurances that this behaviour will not be repeated in the future. The matters where your dishonesty has been highlighted during this process have resulted in trust and confidence necessary for an employment relationship being fatally eroded.”

14

The Complainant did appeal. On 3rd December 2015 Mr Damien Prendergast, Site General Manager, heard the appeal. In his letter dated 8th December 2015 to the Complainant, Mr Prendergast said:-

“…. due to your record and I cannot be confident that you would not further breach Health and Safety on site to your own detriment or the detriment of one of your colleagues working alongside you. We can no longer tolerate such blatant disregard of Health and Safety that you have shown and cannot allow you to continue putting yourself and your fellow colleagues at unnecessary risk” .

15

The Complainant contended that the CCTV footage was inconclusive. He submitted that following the accident the Complainant was in a state of shock and pain and therefore did not report the collision straight away. He argued that the decision to dismiss was not a proportionate response as it did not consider mitigating factors.

Summary of the Respondent's Position
16

Mr Conor O'Gorman, Ibec, on behalf of the Respondent submitted that the dismissal of the Complainant was both substantively and procedurally fair. He said he was dismissed for failing to follow a fundamental aspect of his job and for breaching health and safety. The dismissal was in relation to the accident that had taken place on site on 15th of October 2015. At the time of the accident...

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