A dockworker fired for letting a lost truck driver ride on the running board of a moving container handling machine at Dublin Port has won €10,000 for unfair dismissal.
The Workplace Relations Commission found the worker, Brian Dooley, made a “huge contribution” to his dismissal – but that his employer, Marine Terminals Ltd, had failed to consider his 24 years of “unblemished and diligent service” prior to the incident in May 2020.
Mr Dooley’s complaint under the Unfair Dismissals Act 1977 was upheld in a decision published this morning, but his redress for lost earnings was reduced, as the adjudicating officer found that applying for five jobs in six months did not meet his duty to mitigate his losses.
In evidence at a hearing last year, Mr Dooley said a haulier waiting to fetch a container from the terminal operated by his employer “mounted” the running board around the cab of the container handling machine he was driving “without authorisation”.
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When he told the trucker to get off, the man replied that he was “lost and didn’t know where to go”, Mr Dooley said.
The complainant said the area was crowded with trucks, machinery and other vehicles and that he feared the trucker could be hit by a lorry or a container, so he “proceeded to the driver’s truck” with the trucker still on the running board with the intention of showing him to the collection point.
Mr Dooley told the tribunal that he “should have stopped” the machine and told the trucker he would go “no further” – but said the two-way radio he could have used to communicate the problem was broken.
“Had there been proper induction procedures like [those] used for drivers collecting containers at the port in Cork, this would not have happened,” Mr Dooley said.
The tribunal heard that a planning operations manager, Mr A, discovered the incident while reviewing CCTV on June 24th 2020 and reported it to the company, leading to an investigation and Mr Dooley’s dismissal.
Another manager, who gave evidence, said he had no knowledge that Mr Dooley had brought legal proceedings against Mr A – and said it was the CCTV footage rather than any “bias” against the complainant which “drove the company to dismiss”.
The witness said there was no “defined traffic management system” at the terminal at the time of the incident, nor any formal induction procedures for truckers.
Traffic moved by “custom and practice”, he said.
Barrister Mark O’Connell, BL instructed by Dillon Eustace Solicitors for the respondent, said Mr Dooley “initially refused to acknowledge his actions” when he was first spoken to about the matter, arguing that trust was broken in the employment relationship.
“Had the visitor fallen, the drop would have been approximately seven feet. This was clearly and obviously a very serious breach of health and safety and put the person concerned, and other employees, at risk of very serious injury or death,” Mr O’Connell added.
Mr Dooley’s barrister, Fergal Fitzgerald Doyle BL, who appeared instructed by Francis B Taafe & Co Solicitors, argued there were defects in the company’s procedures and that the sanction meted out was disproportionate.
In her decision, adjudicating officer Máire Mulcahy said she accepted there were “deficits” in traffic guidance and notices at the terminal site but found that Mr Dooley’s response to an “unanticipated” situation was at issue.
“He thought the greater danger lay in allowing the unauthorised person to dismount in an area where there was traffic and where he could have been hit by a container. He got it wrong, and I cannot quarrel with the respondent’s analysis that his failure posed a risk to himself and others,” she wrote.
She found that it might possibly have been a reasonable response to sack an employee for such a matter – but that the company ought to have taken better account of Mr Dooley’s “hitherto unblemished and diligent service of 24 years”, along with his involvement in developing health and safety procedures.
The adjudicator therefore upheld his complaint.
She noted Mr Dooley’s lost a job paying just under €90,000 a year at Marine Terminals and only found work again six months later, at €70,000 – total losses of €74,917 at the time of hearing.
She found that the five applications Mr Dooley made in the six months he was out of work was not adequate mitigation of his losses and ordered the company to pay €10,000 for unfair dismissal.
