Lagan Cement v James Hilton (Represented by Technical, Engineering and Electrical Union)

 
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Labour Court (Ireland)

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UD/17/152

DETERMINATION NO.UDD1814

ADJ-00006103 CA-00008321-001

PARTIES:
Lagan Cement
and
James Hilton (Represented by Technical, Engineering and Electrical Union)
SUBJECT:
1

1. Appeal Of Adjudication Officer Decision No: ADJ-000006103 CA-00008321-001

BACKGROUND:
2

2. This is an appeal under section 8(a) of the Unfair Dismissals Act against a decision of an Adjudication Officer. The Appellant appealed to the Labour Court on 5 October 2017. The case came on for hearing before the Labour Court on 23rd January 2017. The following is the Determination of the Court:

DETERMINATION:
3

This is an appeal by James Hilton (hereafter the Complainant) against an Adjudication Officer's Decision ADJ-00006103 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that he was unfairly dismissed by his former employer Lagan Cement (hereafter the Respondent). The Adjudication Officer found that the dismissal decision was not unfair and that the claim failed.

Background
4

The Complainant commenced employment as a general operative with the Respondent in 2004. His employment ceased on 30 th September 2016. The fact of dismissal is not in dispute. The Respondent's position is that the Complainant was dismissed for Gross Misconduct which consisted of failing to isolate equipment while working on it, failure to carry out a risk assessment and sleeping while at work.

Complainant's case
5

The Complainant first became aware of the issues on the 24 th August 2015 when he was suspended on full pay pending an investigation. The Complainant disputes the allegations made him against him particularly that he breached the Companies Health and Safety procedure. It is the Complainant's position that he was not afforded fair procedure in the process that was followed. In particular, the Assistant Production Manager was not independent in relation to the first incident and should not have been involved in the investigation as he had already decided on the issue when he made the complaint. The principles of natural Justice as set out by the High Court in Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 were not followed, no consideration was given to a lesser sanction and the Complainant was not given the opportunity to question the parties making the complaints against him. In his evidence to the Court the Complainant stated that he was very conscious of Health and Safety in the workplace. In the twelve years, he had worked for the company he had never had an issue raised with him in relation to a breach of Health and Safety. He disputed both the allegations against him and does not believe he got a fair hearing.

Respondent's case
6

On Friday, the 12 th August 2016 the Complainant was observed working on a chute that not been isolated and no risk assessment had been carried out. On the 15 th August, it was alleged that he was found asleep in a loading shovel in a shed. The Employer decided on the 24 th August to suspend him on full pay pending an investigation of the incidents. No explanation was given as to why there was a delay of 12 days from the first incidence to the date of suspension. The investigation was carried out by the...

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