September 01, 2022
Key learnings
In this case, the Employer was able to evidence that the dismissal for gross misconduct was proportionate. They had clear procedures in place which outlined their expectations regarding staff health and safety during the Covid-19 pandemic. They could demonstrate a practice of communicating this policy to employees and communicating it to the Complainant in his native language. The Adjudicator noted that the Employer was entitled, if not obliged, to strictly enforce their rules and procedures during the pandemic and consequently found that, in the circumstances, the dismissal fell within the band of reasonable responses to the Complainants behaviour.
Background
The Complainant failed to comply with the COVID 19 health and safety procedures in place and showed reckless disregard for the safety and wellbeing of residents and other staff within a Direct Provision Centre where the Complainant worked as a porter. These incidents occurred in early April 2020, just as the Covid pandemic lockdown had commenced.
Summary of Complainant’s Case
The Complainant worked as a porter in a Direct Provision Centre which is run by the Respondent, from October 2009 until May 2020.
Following the Government announcement of a nationwide lockdown in late March 2020 the Direct Provision Centre, an essential service, remained operating.
The Complainant was on leave on 25 March 2020 when the Respondent convened a health and safety meeting at which the new Covid protocols were explained to all staff. When he returned to work on 26 March 2020 nothing was explained to him, and he was not provided with any personal protective equipment (PPE) until 10 April 2020.
As English is not his first language, the Complainant felt that the new protocols should have been explained to him in his language, namely Russian, but this did not occur until after the alleged health and safety breaches occurred. He noted that although his English is okay, that it should have been fully explained to him in his own language.
He gave evidence at the Adjudication that he was very aware of the dangers that Covid 19 presented in March/April 2020 and that he was very concerned for his own safety at this time. As no PPE was provided to him in work, he noted that he had to buy his own mask. The Complainant accepts that on 8th April 2020 the Company chef became annoyed with him about having a mask but not wearing it all the time because he found it difficult to breathe through. However, the Complainant put forward that as the protocols had not been properly explained to him before the incident on 8 April 2020, he did not understand why the chef was so annoyed with him. He noted that the only thing that the other Russian speaking employee had told him before then was to sanitise door handles, which he did.
The Complainant said that not only was he not made aware of all the protocols, but he was not told that breaching the protocols could be considered a gross misconduct offence. He disputes much of the evidence given by the Respondent management at the Adjudication hearing. He was suspended on 14 April 2020 and dismissed on 22 May 2020. He was not given a proper opportunity to explain his side of things and he thinks that he was singled out because he had been blamed by kitchen staff about a dirty oven and was disciplined a year earlier in May 2019. The Complainant felt that following this the kitchen staff and management were looking for a reason to dismiss him.
He disputes the fairness of the dismissal and notes that the procedures to dismiss him were flawed and unfair. The Complainant noted that the evidence to support what he was saying was on the CCTV but that no one watched this during the investigation.
Summary of Respondent’s Case
The Complainant was absent from work on 25 March 2020 when the staff were briefed on new Covid protocols. On his return to work on 26 March, the office administrator explained all the protocols to the Complainant. She had another staff member with her when she did this. This was an extremely challenging time for the Respondent. At that time the Government had not yet published any health and safety protocols, so the Respondent’s protocols had been devised by themselves, based on what they knew from other countries and what they considered to be prudent health and safety measures. These were not written in a document, they were explained verbally to staff. The Complainant along with all staff, were provided with PPE (masks, apron, hairnets, gloves) between 17 – 23 March 2020. And they were informed of the necessity of wearing PPE at all times in the Centre.
This conversation was witnessed. The Complainant was asked if he understood, and he said that he did. The Respondent felt that the Complainant’s understanding of English to be of a good standard and that he always communicated in work through English. It was only at the Adjudication hearing that he required an interpreter. However, to ensure he understood everything, the office administrator had asked a Russian speaking employee to go through the protocols with him again in Russian.
On 1 April 2020 the office administrator was told by another porter that the Complainant was not wiping the door handles down with sanitiser and was not cleaning communal areas. She told him to tell the Complainant that he needed to do this. A note was left in the porters’ cabin about Milton being used for the wipe down solution and to use the spray bottles as provided. The day porter on duty left these products for the Complainant who was doing the night shift that night, but the following day when the day porter came into the cabin it was clear that the products had not been used by the Complainant. He reported this all back to the office administrator, who in turn reported it to management.
On 8 April 2020 the office administrator went into the canteen and came upon an argument between the Complainant and the chef about the Complainant not following the protocols. Also, the Complainant was not getting the residents to use the hand sanitiser before they came in and he was not wearing his mask. The Complainant had said to the chef that the “mask was no use.”
The office administrator spoke to her line manager who instructed her to tell the Complainant to leave his post and do other work instead, so she told the Complainant to do other work and a kitchen porter replaced the Complainant on door duty.
On 14 April 2020 another incident occurred in the canteen when the Complainant was not wearing full PPE. He was wearing neither a mask nor a plastic apron. He also was not managing the numbers entering the canteen and was not asking people to use hand sanitiser. The manager came in and the chef asked the manager to deal with the Complainant in order to avoid an argument like the week earlier. The Complainant’s attitude to the Manager was dismissive – and it was like he thought that everyone was overreacting to the risk of contracting the virus. The Manager told the Complainant to leave his post and someone else was asked to man the door. The Complainant was suspended following this incident.
At the end of March 2020, because the Complainant had missed the staff meeting on the Covid protocols, these protocols were explained to the Complainant - especially those pertaining to porters – in Russian. It was explained that the PPE had to be worn at all times, that hand sanitiser was to be used by the residents and that this needed to be enforced for all entering the canteen, the maximum number in the canteen was 4 diners and 6 in total, all door handles, stair bannisters, commonly touched surfaces and security gates needed to be wiped down and no visitors were allowed into the Centre.
The Complainant understood this and just asked one question which was if they were supposed to be working in the canteen delivering food to residents – in their rooms – how were they, at the same time, supposed to wipe down surfaces. It was explained that the kitchen staff would also help in those circumstances but that this problem should not arise that regularly in practice. The Respondent stated that the Complainant was fully aware of the detail of the protocols in place.
The investigation was conducted by a HR Advisor to the Respondent between the Complainant’s suspension on 14 April and his dismissal by letter on 22 May 2020.
As part of the investigation, witness statements from a number of staff who had witnessed the incidents involving the Complainant were collated which he was then provided with and asked to respond to. An investigation report was produced, which advised that the defence raised by the Complainant was that he had not been present at the staff briefing and he did not understand the new procedures and that the protocols were not explained to him in his native language.
The investigator found that the conduct of the Complainant– a failure to follow health and safety protocols - and his actions, constituted a reckless disregard for the health and safety of the staff and residents. These breaches were very serious in the circumstances that prevailed and met the definition of gross misconduct as defined in the Respondent’s disciplinary procedures.
The matter was then referred to the disciplinary stage and a decision was then taken to dismiss the Complainant.
Findings and Conclusions
The Complainant admitted that he was very acutely aware of the seriousness that the Covid pandemic presented on 8 April 2020, if not before then. He knew that the whole country was in lockdown and he admitted that he was very anxious that he might be exposed within his workplace to the risk of infection. However, the Adjudicator stated that this evidence does not sit well with his actions at work: he admits he wiped door handles (and felt that Milton not anti-bacterial solution should have been provided by the Respondent) - but doesn’t think that he needed to wipe bannisters or other door surfaces or light switches or ask residents to use the hand sanitiser as they go into the canteen or maintain social distance at congregation points.
The Complainant did not counter the evidence of the Respondent witnesses when they said one after another that he had been repeatedly instructed on the Covid protocols - but refused to abide by them. These briefing conversations were witnessed by other staff, in addition to the social distancing floor markings, hand sanitiser dispensers mounted on walls and Covid protocol signage on the walls.
The Complainant gave evidence at the Adjudication hearing - which he had not given during the disciplinary process - which was that PPE was not given to any staff until 9th or 10th April and that he had to buy a mask himself, the day following the incident with the Chef in the kitchen on 8 April. This is in contrast to the other witnesses who say that all staff had been given PPE in late March 2020 and that he had been issued it but did not always wear it. By his own witness statement, the Complainant said he did not always wear his mask because he had a difficulty in breathing through it and he admitted that he forgot to wear his PPE plastic apron on 14 April.
If the Complainant was as fully aware of the seriousness of the situation as he now asserts, he would not for a moment have removed his mask in this setting because to do so would have exposed not only him but those in the centre as well as his family at home. He accepted at the Adjudication hearing that on 8 April 2020 he - like all the other staff – became aware that there was a suspect Covid positive case in the Centre. It follows that if he was as concerned about the risk of infection as he asserts then he also would have been aware of the necessity of a consistent vigilance and a zero-risk collective approach by staff and residents to ensure that the virus did not enter and did not transmit within the Centre.
The Adjudicator noted that everyone can recall the worrying weeks in March and April in 2020. Everyone can recall the frightening news stories of infections within nursing homes and cruise ships, places where often vulnerable people were confined and were waiting victims for one weak link to infect the whole building or ship. Everyone remembers too the front-line workers who were vigilant and careful and were exposed to risk in a way that those confined to their own homes were not. The Complainant and the rest of the staff in the centre were such front-line workers.
However, as the Complainant admits that he knew the gravity of the circumstances he was working in, there was no excuse to allow, especially when vaccines were then only a theoretical possibility, his guard, his efforts to prevent transmission, to come down even once, but certainly not repeatedly.
The Adjudicator found the Complainant’s evidence to be inconsistent and found the evidence of the Respondent witnesses to be more credible. The Adjudicator was satisfied that the Complainant was given PPE in late March and that the protocols were explained to him a number of times, both in English and Russian. Whilst noting a considerable number of significant defects and errors in the dismissal process conducted by the Respondent, overall the Adjudicator was satisfied that the Complainant’s actions were acts of gross misconduct akin to a work place assault on a colleague or resident, because in a way that is exactly what it was, and that these actions, would have justified a summary dismissal in these circumstances.
Decision
For the above reasons, it was found that the Complainant was not unfairly dismissed.