A worker who admitted he "may have" been using a mobile phone when he fell off the back of a bin lorry and broke his ankle has lost a case at the Workplace Relations Commission.
Emmet Kelly had accused Bord na Mona Recycling Ltd of penalising him in breach of the Safety, Health and Welfare at Work Act 2005 by putting him through an "unfair" disciplinary process in the wake of the fall on 6 December 2021.
The claim was rejected in a decision published today.
In an incident report submitted in evidence to the WRC at a hearing in November 2023, Mr Kelly told his employer he was on the passenger side footboard at the back of a refuse collection truck at the time of the fall.
"We were travelling on a straight stretch of roadway and the truck went around a bend to the right… I cannot remember if my foot or hand slipped first, but I fell onto the roadway and I heard my [right] ankle snap," he wrote in the report.
Mr Kelly was served with a final written warning after the incident which was downgraded to a first written warning, the tribunal heard.
The company's solicitor, Cian Beecher of Arthur Cox, submitted that the worker confirmed to investigators at a meeting in February 2022 that there were "no issues" with the truck or any of the handles or steps.
When Mr Kelly was asked if he was following a company rule to maintain "four points of contact" while riding on the footboard, Mr Kelly admitted he "may not have done so", it was submitted.
"When asked if he might have been using a mobile phone at the time, again [Mr Kelly] accepted it may have been the case," it was further submitted.
Mr Kelly was then referred to a disciplinary process and ultimately served with a final written warning, which was to remain on his personnel file for 24 months from April 2022, the tribunal heard.
This was downgraded to a first written warning following an appeal.
In his decision on the case, adjudicator Breiffni O’Neill found that there was "no protected act" by Mr Kelly that would bring him under the protection of the health and safety legislation’s measures against penalisation for workers and rejected the complaint as "not well founded".
