It was reasonable to sack a welder who could have been killed entering a high-pressure chemical tank to work on it without a "critical" air safety device, the Workplace Relations Commission has ruled.
However, the worker has been awarded a reduced €1,000 in redress for lost earnings arising from unfair dismissal over his employer's "clearly faulty" handling of the matter.
The employment tribunal upheld Shane Finnegan’s complaint under the Unfair Dismissals Act 1977 against Darland Enterprises Ltd.
But it dismissed his claim that he was put under pressure to bypass safety procedures to "get a tank out" and found he had "contributed significantly" to his dismissal by Dublin Port-based Darland Enterprises Ltd.
However, the employment tribunal found his sacking had been unfair because of defects in the disciplinary process - with an adjudicating officer taking issue with the fact that the firm "puts a proper emphasis on health and safety [but] seems to have little concern for the procedures to be followed when dealing with matters of serious breaches of discipline".
Mr Finnegan claimed group managing director Noel Ryan made it clear he wanted him "gone" after a separate incident in December 2019 that saw the worker sprayed in a caustic cleaning solution and hospitalised - and that after that he was subject to "constant mulish behaviour" from staff in the company’s office.
The complainant said that incident was "subject to separate proceedings".
He said there was an attitude of: "If it takes too long, cut your corners and get it done" at the Darland site in Dublin Port, and that when he cut his finger at work the following summer it became infected when Mr Ryan had him keep working.
"I returned to work with a [medical] note for a week off work for recovery. Noel Ryan said: 'No - go on light duties.’ Period. Back to work you go. It wasn’t light duties; I was shovelling up spilled diesel from the floor," Mr Finnegan said.
He said that at the time he went into the tank without the meter on 4 March 2020 there was "pressure" to have the vessel ready to fill and that the gas meter he normally used was away being calibrated.
The company's position was that there was a second gas meter shared with another group company at a neighbouring premises which Mr Finnegan ought to have used in entering the tank.
Managing director Noel Ryan said Mr Finnegan had been given training on safely working in a gas tank three times in the 15 years he had been working in the group and was required to use a gas meter.
"Mr Finnegan was on my radar," Mr Ryan said, citing warnings he had given for failure to wear a high-viz jacket and eye protection.
After the failure to use the meter came to the attention of management, the company's general manager Brian Gaughren was set to investigate the matter before Mr Finnegan was called to a disciplinary meeting on 10 March 2020 with Mr Ryan and Mr Gaughren, where he was sacked, the tribunal heard.
The tribunal heard the meeting lasted 15 minutes.
Asked by adjudicating officer Catherine Byrne whether he had been given a copy of an investigation report or the minutes of the meeting, Mr Finnegan said he had not.
Mr Ryan denied in his evidence that relations between himself and Mr Finnegan "deteriorated" because of the separate personal injury claim and said the complainant "gave no indication" he was suing.
"It is a matter of concern that a company that puts a proper emphasis on compliance with health and safety procedures seems to have little concern for the procedures to be followed when dealing with matters of serious breaches of discipline," wrote adjudicating officer Catherine Byrne in her decision.
"For his part, the complainant also displayed scant regard for procedures, when he decided that he would be wasting his time if he appealed the decision to dismiss him," she added.
The parties had been at odds over whether the spare gas meter was a mile or 500 metres away from the work site.
"Regardless of the distance, it seems to me that the requirement to use the meter was more critical than the time it would take to collect it. Not using a meter in the tank could have resulted in serious illness or death and, for this reason, I find that his failure to do so was gross misconduct," Ms Byrne wrote.
"There is no evidence that he challenged anyone’s instructions to work quickly without adhering to the safety precautions and I do not accept that he was under such pressure that he felt forced not to follow the procedures," Ms Byrne added.
Although sacking the complainant for this breach was "reasonable", the company’s dismissal process had been "clearly faulty", she added.
As Mr Finnegan "contributed significantly" to the dismissal decision, Ms Byrne ordered the company to pay him €1,000, half his loss of earnings in the two years which followed his sacking.
