WHAT TO KEEP AN EYE OUT FOR…
Health and Safety Considerations: FIRE
Generally speaking, section 8 obliges employers to have a safe place of work.
Section 8.-
(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
(2) Without prejudice to the generality of subsection (1), the employer's duty extends, in particular, to the following:
(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;
Under Section 19 of the Safety, Health and Welfare at Work Act 2005 (the 2005 Act) every employer shall identify hazards, assess risks and have a written risk assessment, including any unusual or other risks. To comply with Section 19, employers are required to carry out risk assessments and to record these in the Safety Statement. A fire safety risk assessment should be conducted to take into account the following;
Section 11 is quite specific regarding emergencies;
…11.—(1) Without prejudice to the generality of section 8 , every employer shall, in preparing and revising as necessary adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger--
(a) provide the necessary measures to be taken appropriate to the place of work for first aid, fire-fighting and the evacuation of employees and any other individual present [e.g. visitors, contractors] in the place of work, taking account of the nature of the work being carried on and the size of the place of work,
(b) arrange any necessary contacts with the appropriate emergency services, in particular with regard to first aid, emergency medical care, rescue work and fire-fighting,
(c) for the purposes of implementing the plans, procedures and measures referred to in this section and section 8
(i) designate employees who are required to implement those plans, procedures and measures [e.g. fire wardens], and
(ii) ensure that the number of those employees, their training and the equipment available to them are adequate, taking into account either or both the size of and specific hazards relating to the place of work…
Health, Safety and Welfare at Work (General Applications) Regulations 2007
The General Application Regulations go into more depth, i.e.;
Regulation 12, Emergency Routes and Exits.
Without prejudice to section 11 of the Act, the Fire Services Acts 1981 and 2003 (No. 30 of 1981 and No.15 of 2003) and other relevant legislation, an employer shall ensure that--
(a) emergency routes to emergency exits and the exits themselves are kept clear at all times and lead as directly as possible to the open air or to a safe area,
(b) in the event of danger, it is possible for employees to evacuate all workstations quickly and as safely as possible,
(c) the number, distribution and dimensions of the emergency routes and exits are adequate for the use, equipment and dimensions of the place of work and the maximum number of persons that may be present,
(d) emergency exit doors open outwards,
(e) any sliding or revolving doors that are fitted are not used, or intended to be used, as emergency exits,
(f) emergency doors and gates are not so locked or fastened that they cannot be easily and immediately opened by any person who may need to use them in an emergency,
(g) specific emergency routes and exits are indicated by signs in accordance with Part 7 Chapter 1 and such signs are placed at appropriate points and are adequately durable,
(h) emergency routes and exits, and the traffic routes and doors giving access to them are free from obstruction so that they can be used at any time without hindrance, and
(i) emergency routes and exits requiring illumination are provided with emergency lighting of adequate intensity in case the lighting fails.
Regulation 13 Fire detection and fire fighting.
13. Without prejudice to section 11 of the Act, the Fire Services Acts 1981 and 2003 (No. 30 of 1981 and No.15 of 2003) and other relevant legislation, an employer shall ensure that--
(a) a place of work is equipped with appropriate fire-fighting equipment and, as necessary, fire detectors and an alarm system, taking account of--
(i) the dimensions and use of the buildings,
(ii) the equipment they contain,
(iii) the physical and chemical characteristics of the substances present, and
(iv) the maximum potential number of people present,
(b) non-automatic fire-fighting equipment is--
(i) easily accessible and simple to use, and
(ii) indicated by signs in accordance with Part 7, Chapter 1 and the signs are placed at appropriate points and are adequately durable, and
(c) fire detection equipment and fire-fighting equipment is--
(i) inspected and maintained as frequently as necessary to ensure that it is in good working order, and
(ii) serviced by a competent person as frequently as necessary.
One of the risk assessments often overlooked by employers is that of evacuation of people with disabilities.
Again legislation covers this, for example the Health, Safety and Welfare at Work Act 2005 and Health, Safety and Welfare at Work (General Applications) Regulations 2007 respectively;
Section 12.--Every employer shall manage and conduct his or her undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being his or her employees) are not exposed to risks to their safety, health or welfare [e.g. Visitors].
Regulation25. An employer shall ensure that places of work, where necessary, are organised to take account of persons [e.g. staff, visitors etc] at work with disabilities, in particular as regards doors, passageways, staircases showers, washbasins, lavatories and workstations used or occupied directly by those persons.
There are also a number of other Acts that provide a legislative framework for organisations to ensure that premises and services comply with minimum accessibility requirements. These include the Employment Equality Acts (1998/2015), the Equal Status Acts (2000/2015), the Disability Act (2005)
In short, an employer can not discriminate regarding evacuating employees and/or visitors who have a disability, i.e., they must be evacuated as soon as possible whether that is by means of buddy assistance, evacuation chair, evacuation lift (most lifts are not).
To that end, employers must have in place Personal Emergency Evacuation Plans (PEEP’s) for each and every employee with a disability and the PEEP must be done in conjunction with the employee. For visitors, a Generic Emergency Evacuation Plan (GEEP) should be in place.
If we revisit Section 11 of the Health, Safety and Welfare at Work Act 2005, you will recall
…11.—(1) Without prejudice to the generality of section 8 , every employer shall, in preparing and revising as necessary adequate plans and procedures [e.g. PEEPs, GEEP’s] to be followed and measures to be taken in the case of an emergency or serious and imminent danger--
(a) provide the necessary measures [e.g. evacuation chairs] to be taken appropriate to the place of work for first aid, fire-fighting and the evacuation of employees and any other individual present [e.g. visitors, contractors] in the place of work, taking account of the nature of the work being carried on and the size of the place of work,
Evacuation chairs are designed to allow people with disabilities, particularly those with mobility difficulties, to be helped to move down and, in some case, up stairs during an evacuation. These chairs can be used where it is not safe to use lifts to evacuate, and where an evacuation chair is less risky than remaining behind at a refuge area. These chairs usually require one or two operators to guide the chair down the stairs. Evacuation chairs can usually be folded into a compact size, and can be mounted to a wall at or near a stairwell. Most of these chairs require a wheelchair user to transfer out of their own chair into the evacuation chair.
Refuge areas are defined in the Part B Building regulations as follows:
Refuge areas are areas within a building separated by fire-resisting construction and provided with a safe route to a storey exit, where people with disabilities can await assistance for their evacuation.
These areas are sometimes called 'Area of Temporary Rescue Assistance' or 'Refuge Zones'. A person with a disability can wait to be evacuated at the refuge area, when it is not possible to evacuate the building safely with everyone else. There are a number of difficulties with using Refuge Areas as part of evacuation plans:
The obligation is on the employer to evacuate all personnel, not to depend on the Fire Authority to do the evacuating.
Safe evacuations depend on the skills and abilities of the staff involved in making evacuations happen. Fire managers and fire wardens play a critical role in making sure that everyone can get out of the building safely. It is important that staff are trained and prepared to carry out their functions.
As with most management issues, it is important that an evacuation policy is agreed, written down, and signed off by senior management. This is sometimes called an egress policy. The evacuation policy would typically form part of the safety statement required under Section 20 of the Safety, Health and Welfare at Work Act (2005).
The evacuation policy should consider any restrictions on access to the building. These restrictions could be general capacity limits relating to all users, or could be specific to people who need additional support during evacuation.
An Evacuation Plan should be developed, based on the Evacuation Policy detailed above. This plan should outline the roles and responsibilities of staff for evacuations. It may well include building floor plans, details of evacuation equipment and routes, and procedures for visitors who may need assistance during evacuation.
Staff Training
Trained staff can make a big difference to making sure that an evacuation happens smoothly, safely and quickly. It is important that training is done often enough to ensure that staff can put the training into action when required. Training does not have to take place in a classroom or training room. Practical hands-on training on the stairs or at the lift is critical.
Training methods can include classroom training, eLearning, video presentation, hands-on practice, one-to-one training and mentoring. Make sure that enough staff are trained to cover out-of-hours use of the building, and absences due to turnover, holiday or illness.
Training should include the following topics:
Tony McDonnell - Health and Safety Consultant
Adare Human Resource Management
With over 32 years as a Firefighter-Paramedic and Operational Fire Officer, a lot of experience has been acquired in all aspects of fire, rescue and medical emergencies. This has stood to Tony when delivering fire safety training or offering fire safety consultancy and first aid responder (workplace) courses.
Tony studied Health, Safety and Welfare in UCD. Tony is a Chartered Member status with IOSH. As a result, Tony is now a proficient safety consultant compiling safety statements, risk assessments and control measures.
Tony is also a trainer in key occupational related courses, including fire safety, first aid responders, manual handling, people handling, abrasive wheels, safety management, risk assessing, fire extinguishers, cardiac first responder, paediatric first aid.
Tony, Chartered Member of IOSH (CMIOSH) Member of IFE (MIFireE) P.Cert in Env.Man
Tony can deliver training on a range of topics including but not limited to;
Contact details:
Phone: 01 561 3594 / 086 011 5026
Email: tmcdonnell@adarehrm.ie
Section 8.-
(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
(2) Without prejudice to the generality of subsection (1), the employer's duty extends, in particular, to the following:
(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;
Under Section 19 of the Safety, Health and Welfare at Work Act 2005 (the 2005 Act) every employer shall identify hazards, assess risks and have a written risk assessment, including any unusual or other risks. To comply with Section 19, employers are required to carry out risk assessments and to record these in the Safety Statement. A fire safety risk assessment should be conducted to take into account the following;
- Fire prevention measures
- Fire detection and warning
- Emergency escape and fire fighting.
Section 11 is quite specific regarding emergencies;
…11.—(1) Without prejudice to the generality of section 8 , every employer shall, in preparing and revising as necessary adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger--
(a) provide the necessary measures to be taken appropriate to the place of work for first aid, fire-fighting and the evacuation of employees and any other individual present [e.g. visitors, contractors] in the place of work, taking account of the nature of the work being carried on and the size of the place of work,
(b) arrange any necessary contacts with the appropriate emergency services, in particular with regard to first aid, emergency medical care, rescue work and fire-fighting,
(c) for the purposes of implementing the plans, procedures and measures referred to in this section and section 8
(i) designate employees who are required to implement those plans, procedures and measures [e.g. fire wardens], and
(ii) ensure that the number of those employees, their training and the equipment available to them are adequate, taking into account either or both the size of and specific hazards relating to the place of work…
Health, Safety and Welfare at Work (General Applications) Regulations 2007
The General Application Regulations go into more depth, i.e.;
Regulation 12, Emergency Routes and Exits.
Without prejudice to section 11 of the Act, the Fire Services Acts 1981 and 2003 (No. 30 of 1981 and No.15 of 2003) and other relevant legislation, an employer shall ensure that--
(a) emergency routes to emergency exits and the exits themselves are kept clear at all times and lead as directly as possible to the open air or to a safe area,
(b) in the event of danger, it is possible for employees to evacuate all workstations quickly and as safely as possible,
(c) the number, distribution and dimensions of the emergency routes and exits are adequate for the use, equipment and dimensions of the place of work and the maximum number of persons that may be present,
(d) emergency exit doors open outwards,
(e) any sliding or revolving doors that are fitted are not used, or intended to be used, as emergency exits,
(f) emergency doors and gates are not so locked or fastened that they cannot be easily and immediately opened by any person who may need to use them in an emergency,
(g) specific emergency routes and exits are indicated by signs in accordance with Part 7 Chapter 1 and such signs are placed at appropriate points and are adequately durable,
(h) emergency routes and exits, and the traffic routes and doors giving access to them are free from obstruction so that they can be used at any time without hindrance, and
(i) emergency routes and exits requiring illumination are provided with emergency lighting of adequate intensity in case the lighting fails.
Regulation 13 Fire detection and fire fighting.
13. Without prejudice to section 11 of the Act, the Fire Services Acts 1981 and 2003 (No. 30 of 1981 and No.15 of 2003) and other relevant legislation, an employer shall ensure that--
(a) a place of work is equipped with appropriate fire-fighting equipment and, as necessary, fire detectors and an alarm system, taking account of--
(i) the dimensions and use of the buildings,
(ii) the equipment they contain,
(iii) the physical and chemical characteristics of the substances present, and
(iv) the maximum potential number of people present,
(b) non-automatic fire-fighting equipment is--
(i) easily accessible and simple to use, and
(ii) indicated by signs in accordance with Part 7, Chapter 1 and the signs are placed at appropriate points and are adequately durable, and
(c) fire detection equipment and fire-fighting equipment is--
(i) inspected and maintained as frequently as necessary to ensure that it is in good working order, and
(ii) serviced by a competent person as frequently as necessary.
One of the risk assessments often overlooked by employers is that of evacuation of people with disabilities.
Again legislation covers this, for example the Health, Safety and Welfare at Work Act 2005 and Health, Safety and Welfare at Work (General Applications) Regulations 2007 respectively;
Section 12.--Every employer shall manage and conduct his or her undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being his or her employees) are not exposed to risks to their safety, health or welfare [e.g. Visitors].
Regulation25. An employer shall ensure that places of work, where necessary, are organised to take account of persons [e.g. staff, visitors etc] at work with disabilities, in particular as regards doors, passageways, staircases showers, washbasins, lavatories and workstations used or occupied directly by those persons.
There are also a number of other Acts that provide a legislative framework for organisations to ensure that premises and services comply with minimum accessibility requirements. These include the Employment Equality Acts (1998/2015), the Equal Status Acts (2000/2015), the Disability Act (2005)
In short, an employer can not discriminate regarding evacuating employees and/or visitors who have a disability, i.e., they must be evacuated as soon as possible whether that is by means of buddy assistance, evacuation chair, evacuation lift (most lifts are not).
To that end, employers must have in place Personal Emergency Evacuation Plans (PEEP’s) for each and every employee with a disability and the PEEP must be done in conjunction with the employee. For visitors, a Generic Emergency Evacuation Plan (GEEP) should be in place.
If we revisit Section 11 of the Health, Safety and Welfare at Work Act 2005, you will recall
…11.—(1) Without prejudice to the generality of section 8 , every employer shall, in preparing and revising as necessary adequate plans and procedures [e.g. PEEPs, GEEP’s] to be followed and measures to be taken in the case of an emergency or serious and imminent danger--
(a) provide the necessary measures [e.g. evacuation chairs] to be taken appropriate to the place of work for first aid, fire-fighting and the evacuation of employees and any other individual present [e.g. visitors, contractors] in the place of work, taking account of the nature of the work being carried on and the size of the place of work,
Evacuation chairs are designed to allow people with disabilities, particularly those with mobility difficulties, to be helped to move down and, in some case, up stairs during an evacuation. These chairs can be used where it is not safe to use lifts to evacuate, and where an evacuation chair is less risky than remaining behind at a refuge area. These chairs usually require one or two operators to guide the chair down the stairs. Evacuation chairs can usually be folded into a compact size, and can be mounted to a wall at or near a stairwell. Most of these chairs require a wheelchair user to transfer out of their own chair into the evacuation chair.
Refuge areas are defined in the Part B Building regulations as follows:
Refuge areas are areas within a building separated by fire-resisting construction and provided with a safe route to a storey exit, where people with disabilities can await assistance for their evacuation.
These areas are sometimes called 'Area of Temporary Rescue Assistance' or 'Refuge Zones'. A person with a disability can wait to be evacuated at the refuge area, when it is not possible to evacuate the building safely with everyone else. There are a number of difficulties with using Refuge Areas as part of evacuation plans:
- Anybody who is expected to wait inside a building while most others are evacuating may well be nervous or fearful about staying behind.
- Fire wardens or personal assistants may be reluctant to put their own safety at risk by staying behind with a person with a disability.
The obligation is on the employer to evacuate all personnel, not to depend on the Fire Authority to do the evacuating.
Safe evacuations depend on the skills and abilities of the staff involved in making evacuations happen. Fire managers and fire wardens play a critical role in making sure that everyone can get out of the building safely. It is important that staff are trained and prepared to carry out their functions.
As with most management issues, it is important that an evacuation policy is agreed, written down, and signed off by senior management. This is sometimes called an egress policy. The evacuation policy would typically form part of the safety statement required under Section 20 of the Safety, Health and Welfare at Work Act (2005).
The evacuation policy should consider any restrictions on access to the building. These restrictions could be general capacity limits relating to all users, or could be specific to people who need additional support during evacuation.
An Evacuation Plan should be developed, based on the Evacuation Policy detailed above. This plan should outline the roles and responsibilities of staff for evacuations. It may well include building floor plans, details of evacuation equipment and routes, and procedures for visitors who may need assistance during evacuation.
Staff Training
Trained staff can make a big difference to making sure that an evacuation happens smoothly, safely and quickly. It is important that training is done often enough to ensure that staff can put the training into action when required. Training does not have to take place in a classroom or training room. Practical hands-on training on the stairs or at the lift is critical.
Training methods can include classroom training, eLearning, video presentation, hands-on practice, one-to-one training and mentoring. Make sure that enough staff are trained to cover out-of-hours use of the building, and absences due to turnover, holiday or illness.
Training should include the following topics:
- General evacuation procedure training - for all staff;
- Fire warden training;
- Fire extinguisher training;
- Specific evacuation procedure training - for fire wardens or others responsible for evacuation of people with disabilities, and for building users with PEEPs;
- General disability equality training - for all staff, to ensure they will understand the difficulties faced by people with disabilities and can communicate effectively with people with disabilities in an emergency situation
- Mobility assistance - for anyone responsible for transferring a person from their personal wheelchair or a bed into an evacuation chair - could include patient handling and manual handling training;
- Use of equipment - for anyone responsible for using an evacuation chair, or managing an evacuation lift, or other equipment - could include use of fire extinguishers for anyone willing and competent for this.
Tony McDonnell - Health and Safety Consultant
Adare Human Resource Management
With over 32 years as a Firefighter-Paramedic and Operational Fire Officer, a lot of experience has been acquired in all aspects of fire, rescue and medical emergencies. This has stood to Tony when delivering fire safety training or offering fire safety consultancy and first aid responder (workplace) courses.
Tony studied Health, Safety and Welfare in UCD. Tony is a Chartered Member status with IOSH. As a result, Tony is now a proficient safety consultant compiling safety statements, risk assessments and control measures.
Tony is also a trainer in key occupational related courses, including fire safety, first aid responders, manual handling, people handling, abrasive wheels, safety management, risk assessing, fire extinguishers, cardiac first responder, paediatric first aid.
Tony, Chartered Member of IOSH (CMIOSH) Member of IFE (MIFireE) P.Cert in Env.Man
Tony can deliver training on a range of topics including but not limited to;
- Manual handling
- Patient/People handling
- First Aid Responder
- First Aid Responder Refresher
- Cardiac First Responder (AED)
- Fire Safety Management
- Fire Extinguisher training
- Evacuation Chair Training
- Abrasive Wheels Training
- Workplace Safety Representative Training
- Managing Safety Training
Contact details:
Phone: 01 561 3594 / 086 011 5026
Email: tmcdonnell@adarehrm.ie
A Bus Driver sacked for sharing ‘shock’ pictures of a faulty wheel has won an Unfair Dismissal Claim
A Coach Driver who was fired after posting a picture on Facebook of a faulty wheel on one of his employer’s vehicles has won an unfair dismissals claim.
The Workplace Relations Commission (WRC) said that it was inappropriate for the driver to post negatively about work-related matters online, but ruled that he had been unfairly dismissed as the company’s social media policies had not been properly communicated to him.
At a recent WRC hearing, the driver admitted that his actions were wrong and he had later removed the post but said that his dismissal was “a very harsh response” to the situation.
The incident happened when the driver noticed something wrong with the vehicle he was driving. He pulled the coach over and saw that the rear left wheel was hanging on one bolt and the rest of the nuts were gone.
He took a photo of the wheel and posted it on his personal Facebook page “as a shock reaction” to a “potentially very dangerous” situation.
The driver said that he had only posted one photo of the defective wheel and had been careful not to identify his employer. He added that he only wanted to post about his experience and didn’t intend to bring the company’s name into disrepute.
The WRC said that that although the coach company had a social media policy in place that prohibited such actions, the driver was unaware of this and did not realise that posting the photo could lead to his dismissal.
It added that there was “no evidence of any reputational damage” to the coach company arising from the driver’s actions, and there was no consideration of the mitigating factors of the situation or whether a formal warning would be more appropriate.
As a result, the WRC said in its anonymised report that the driver should not have been dismissed without notice and recommended that he be awarded €990 in compensation.
Social media policies
In its decision, the WRC noted that there have been other similar cases where dismissals were found to be unfair because the employer did not have a social media policy in place.
Derek McKay, managing director of Adare Human Resource Management, said that there is now an expectation that all employers should have appropriate policies regarding online activity and social media.
“Given the nature of technology in our lives now, it’s not uncommon for people to be posting or commenting about their job online,” he told Fora.
“But there needs to be clear guidelines about what is appropriate and the potential effect that breaching the policy could have on employees if an issue arises.”
In this case, the coach company told the WRC that it has a policy document which “provides guidance and direction to all staff when utilising all types of online media sites and networks”.
It added that by posting a work-related photograph on Facebook, the driver had engaged in a “breach of confidentiality”, which caused the company to “lose faith in his integrity”.
However, the WRC said that there was no evidence that the driver had been provided with this document, and suggested he had “no idea whatsoever” that his actions on social media could ultimately lead to a dismissal.
McKay said that while it is important for companies to have the appropriate policies in place, they also need to make sure that all staff understand what the rules mean in practice.
“The onus is not just on the employer to have a policy but to communicate it effectively to staff. It’s not enough saying it as a once-off when an employee starts the job.”
The Workplace Relations Commission (WRC) said that it was inappropriate for the driver to post negatively about work-related matters online, but ruled that he had been unfairly dismissed as the company’s social media policies had not been properly communicated to him.
At a recent WRC hearing, the driver admitted that his actions were wrong and he had later removed the post but said that his dismissal was “a very harsh response” to the situation.
The incident happened when the driver noticed something wrong with the vehicle he was driving. He pulled the coach over and saw that the rear left wheel was hanging on one bolt and the rest of the nuts were gone.
He took a photo of the wheel and posted it on his personal Facebook page “as a shock reaction” to a “potentially very dangerous” situation.
The driver said that he had only posted one photo of the defective wheel and had been careful not to identify his employer. He added that he only wanted to post about his experience and didn’t intend to bring the company’s name into disrepute.
The WRC said that that although the coach company had a social media policy in place that prohibited such actions, the driver was unaware of this and did not realise that posting the photo could lead to his dismissal.
It added that there was “no evidence of any reputational damage” to the coach company arising from the driver’s actions, and there was no consideration of the mitigating factors of the situation or whether a formal warning would be more appropriate.
As a result, the WRC said in its anonymised report that the driver should not have been dismissed without notice and recommended that he be awarded €990 in compensation.
Social media policies
In its decision, the WRC noted that there have been other similar cases where dismissals were found to be unfair because the employer did not have a social media policy in place.
Derek McKay, managing director of Adare Human Resource Management, said that there is now an expectation that all employers should have appropriate policies regarding online activity and social media.
“Given the nature of technology in our lives now, it’s not uncommon for people to be posting or commenting about their job online,” he told Fora.
“But there needs to be clear guidelines about what is appropriate and the potential effect that breaching the policy could have on employees if an issue arises.”
In this case, the coach company told the WRC that it has a policy document which “provides guidance and direction to all staff when utilising all types of online media sites and networks”.
It added that by posting a work-related photograph on Facebook, the driver had engaged in a “breach of confidentiality”, which caused the company to “lose faith in his integrity”.
However, the WRC said that there was no evidence that the driver had been provided with this document, and suggested he had “no idea whatsoever” that his actions on social media could ultimately lead to a dismissal.
McKay said that while it is important for companies to have the appropriate policies in place, they also need to make sure that all staff understand what the rules mean in practice.
“The onus is not just on the employer to have a policy but to communicate it effectively to staff. It’s not enough saying it as a once-off when an employee starts the job.”
Court Rules Irish Rail not required to allow Worker have Legal Representation at Disciplinary Hearing
Irish Rail is not required to allow an inspector have legal representation before it embarks on a disciplinary inquiry into a charge of misconduct arising from alleged “theft of fuel” through misuse of a company fuel card, the Court of Appeal has ruled.
The Appeal Court found the High Court erred in law by granting injunctions restraining the inquiry until Irish Rail allowed Barry McKelvey get lawyers.
On the facts as they stood in May 2017 when Irish Rail initiated the inquiry and refused Mr McKelvey's application for legal aid, he did not require lawyers, Ms Justice Mary Irvine said.
There were no special or exceptional circumstances which warranted the High Court finding Mr McKelvey could not get a fair hearing in accordance with natural justice unless he was represented by solicitor and counsel, she ruled.
While the High Court was entitled to have regard to the serious nature of the charge against Mr McKelvey, the potential penalty and potential impact on his reputation, these were matters "far from exceptional" in the context of work place investigations and not dispositive of his entitlement to lawyers, she added.
She failed, for example, to see why lawyers were necessary to advise of the significance of spreadsheet’s relating to use of fuel cards.
None of his other rights, including to be heard in relation to the allegations and to make representations, were in dispute, she stressed.
Mr McKelvey can also, at any stage during the inquiry, renew his request to entitlement to be represented by lawyers should matters emerge which neither he nor his trade union representative could reasonably be expected to deal with without such legal representation, she added.
Irish Rail's disciplinary policy and procedures are fully compliant with the code of practice under the Industrial Relations Act and all disciplinary inquiries must be carried out in a fair manner which meets the requirements of natural and constitutional justice, she said.
For that process to meet that standard, it was not necessary, save in exceptional circumstances, for an employee to be legally represented.
A disciplinary process which routinely involved lawyers would slow down the process, make it costlier and have "significant adverse effects" for the relationship between management and employees and between employees themselves.
She was giving the three-judge court’s judgment allowing Irish Rail’s appeal over the High Court injunctions. Mr. McKelvey was an employee of Irish Rail since 1999 and an inspector from May 2013.
His responsibilities included managing employees charged with maintaining the Dublin to Cork rail line.
As part of that work, he was given fuel cards to facilitate re-fuelling of company vehicles and machinery. Other Irish Rail employees also had use of such cards.
Irish Rail began a preliminary investigation in late 2016 after it became concerned about the amount of fuel purchased using fuel cards in Mr McKelvey's division, division three. He was interviewed as part of that and shown spreadsheets relating to purchases made with his fuel card in 2014, 2015 and 2016.
He had said some such purchases could have been made using his card without his knowledge and his card may have been taken by another staff member.
In March 2017, after he was advised he was being suspended on basic pay until further notice, that triggered letters from his trade union representative, Paul Cullen, and from Sinnott Solicitors challenging the lawfulness of his suspension.
In May 2017, Mr McKelvey was notified Irish Rail had decided to initiate its formal disciplinary process to inquire into the matter of: "Theft of fuel through the misuse of a company fuel card(s), which has resulted with the company suffering a significant financial loss."
He requested an oral hearing and also asked, having regard to the allegation of "theft", he be allowed to be represented by solicitor and counsel at the disciplinary hearing. He also made various complaints about the procedures for that hearing. Irish Rail was later restrained by the High Court from taking any further steps in the process until it agreed Mr McKelvey might have legal representation. It argued that was unnecessary for reasons including he would be represented by an experienced trade union official.
The Appeal Court found the High Court erred in law by granting injunctions restraining the inquiry until Irish Rail allowed Barry McKelvey get lawyers.
On the facts as they stood in May 2017 when Irish Rail initiated the inquiry and refused Mr McKelvey's application for legal aid, he did not require lawyers, Ms Justice Mary Irvine said.
There were no special or exceptional circumstances which warranted the High Court finding Mr McKelvey could not get a fair hearing in accordance with natural justice unless he was represented by solicitor and counsel, she ruled.
While the High Court was entitled to have regard to the serious nature of the charge against Mr McKelvey, the potential penalty and potential impact on his reputation, these were matters "far from exceptional" in the context of work place investigations and not dispositive of his entitlement to lawyers, she added.
She failed, for example, to see why lawyers were necessary to advise of the significance of spreadsheet’s relating to use of fuel cards.
None of his other rights, including to be heard in relation to the allegations and to make representations, were in dispute, she stressed.
Mr McKelvey can also, at any stage during the inquiry, renew his request to entitlement to be represented by lawyers should matters emerge which neither he nor his trade union representative could reasonably be expected to deal with without such legal representation, she added.
Irish Rail's disciplinary policy and procedures are fully compliant with the code of practice under the Industrial Relations Act and all disciplinary inquiries must be carried out in a fair manner which meets the requirements of natural and constitutional justice, she said.
For that process to meet that standard, it was not necessary, save in exceptional circumstances, for an employee to be legally represented.
A disciplinary process which routinely involved lawyers would slow down the process, make it costlier and have "significant adverse effects" for the relationship between management and employees and between employees themselves.
She was giving the three-judge court’s judgment allowing Irish Rail’s appeal over the High Court injunctions. Mr. McKelvey was an employee of Irish Rail since 1999 and an inspector from May 2013.
His responsibilities included managing employees charged with maintaining the Dublin to Cork rail line.
As part of that work, he was given fuel cards to facilitate re-fuelling of company vehicles and machinery. Other Irish Rail employees also had use of such cards.
Irish Rail began a preliminary investigation in late 2016 after it became concerned about the amount of fuel purchased using fuel cards in Mr McKelvey's division, division three. He was interviewed as part of that and shown spreadsheets relating to purchases made with his fuel card in 2014, 2015 and 2016.
He had said some such purchases could have been made using his card without his knowledge and his card may have been taken by another staff member.
In March 2017, after he was advised he was being suspended on basic pay until further notice, that triggered letters from his trade union representative, Paul Cullen, and from Sinnott Solicitors challenging the lawfulness of his suspension.
In May 2017, Mr McKelvey was notified Irish Rail had decided to initiate its formal disciplinary process to inquire into the matter of: "Theft of fuel through the misuse of a company fuel card(s), which has resulted with the company suffering a significant financial loss."
He requested an oral hearing and also asked, having regard to the allegation of "theft", he be allowed to be represented by solicitor and counsel at the disciplinary hearing. He also made various complaints about the procedures for that hearing. Irish Rail was later restrained by the High Court from taking any further steps in the process until it agreed Mr McKelvey might have legal representation. It argued that was unnecessary for reasons including he would be represented by an experienced trade union official.
