HR / Safety question - Was this Gross Misconduct

A

arokili

Guest
Sorry for posting here but I need to ask your advice about something a Safety/Hr Issue. My neighbour asked my opinion on the following matter yest but I could not be of any help really to her as I dont have Hr or Safety Background. They are a good Family and basically her son was let go from his job on Fri last. Details as follows.
My Neighbours son is a good lad has will be 18yrs in Oct.
He works in Timb Industry as genereal operative( no union where is working has worked in this place for about 1.5years). What he done was silly but I did not think it was grounds for dismissal I would have thought it was misconduct and he should have got warnings but can the following be classed as Gross Misconduct for which his employment was terminated. His Parents are really upset as this lad was never late for work and had great attendance etc he did something wrong but I dont think it warranted him being Sacked.
This is what happened. They were in a shed Manufacturing Timber Frames for a New House. Pigeons flying over head all day (doing their droppings on them) Finally after putting up with this all day he got a nail gun and fired this at the pigeon............stupid I know and dangerous the Foreman saw what happened and reported it to Safety Officer who visited the site the following day and had a discplinary meeting with him and the supervisor and his employment was terminated on the grounds of
GROSS MISCONDUCT..........the young chap is devastated and knows he was so wrong has never never been in trouble before....
Were the employers right to sack him or can he take a case for Unfair Dismissal. FOR ONE MINUTE I DONT AGREE WITH WHAT HE DONE BUT I JUST WANT TO BE ABLE TO TELL HIS PARENTS IF THERE IS SOMETHING THAT CAN BE DONE OR IF THEY JUST HAVE TO ACCEPT WHAT HAPPENED.
Sorry for ranting on but part of me feels sorry for them they are such a nice family and the young chap is a grand lad as I say never before in trouble he is gutted. What If anything can they do??
Any advice would be great.
 
..

Thats a very specific question. Not too easy to find similiar cases for reference.

i would have thought that doing something that could end up killing someone(and firing a nail gun could) could be very easily viewed as gross misconduct...
 
I have only had limited exposure to HR in my career to date, but in my opinion the employer was 100% correct to fire your neighbours lad for Gross Misconduct.

There are two main elements here:

1. The inappropriate use of a dangerous tool - a nail gun is very dangerous if used incorrectly - what would have happened if he had missed the bird and the nail had fallen or ricochet'd back and hit someone ?

2. The killing of an animal that posed no immediate threat is cruel and unnecessary - if he had killed a dog that was running around barking and making noise would you think it was ok ?

I accept that this lad may be good and decent guy, didn't mean anything by his actions, was frustrated and in a moment of weakness let his frustration get the better of him, however, the company has a duty to protect its employees and would be correct to wonder if this lad, if he stayed, would do the same again and seriously hurt someone.

As for it being unfair to guy, it may be, but that is part of growing up - taking responsibility for your actions and learning from your mistakes - I can bet he won't be shooting any more pigeons again.

Anyway just my two cent

efm
 
Safety

Firstly, in my opinion, the young man in question is an idiot and if I was running a site he'd be out the door. However, the question raised was can he do anything about it....As far as I know, common sense is not assumed for employees - they need to be trained. If the lad in question had read and signed the company safety policy, if he had been formally advised of the proper use of tools and their hazards, if he has for example completed a FAS Safepass training course (if he's on a construction site) then he can be considered to have been adequately trained. If none of the above has been provided, then he may be able to say that he wasn't made aware of the hazards of the nail gun. As I said, he should know better, but the onus is on the company to make sure they have trained him. I'd say that an appeal on this basis has a slim chance at best.
 
Re: Safety

Its not looking too good for your friends son.

I know the unions are very slow to take up similar cases and generally tend to back the employer in matters of health and safety.

However if the employer did not follow due process the lad might be able to make a case. Was he given the opportunity to explain his actions? Was he given adequate health and safety training? Was he summarily sacked on the spot or did the employer consider the situation after a "cool down" period. It would be normal practice for the employee to be suspended pending the outcome of an investigation no matter how watertight the case might seem.

Finally,and this is a longshot, perhaps if his parents were to ring the employer he might be persuaded to re-employ him on the grounds that he has learned a lesson and is very unlikely to reoffend.

ajapale
 
Re: "the employer he might be persuaded to re-employ hi

How would you feel if you had to work near this guy ( child ? ) in a work area with power saws, nail guns, compressed air ( I'm guessing at the first & last ) ?

Best that he should find another job away from power tools & machinery for a few years.
 
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I don't think there's any doubt that the guy is an idiot and what he did was stupid beyond belief.

However, he might have grounds for unfair dismissal if he can show that the company didn't formally communicate:

1) that an act of gross misconduct would automatically result in summary dismissal or,

2) what the company's interpretation of an act of gross misconduct actually is.

Claims of unfair dismissal based on these grounds have been upheld in the past, so the chap in question may have an out.
 
Re: ..

Perhaps it could be said that he was fairly unfairly dismissed ?
 
what a country...

I agree with elderdogs train of thought.
Surely, the young lad in question should call it quits and leave without wondering what he can legally do.
What a country this is if a guy can fire nail guns at free will and when the employer ( rightfully ) gives him the boot, he questions this !!!
lets take it a step further, if he had brought a loaded shotgun in to work and was fired for this. Could he claim that at no stage did his employer tell him that he was not allowed to bring arms to work ?
Or that even by bringing his gun to work, which was gross misconduct, he has a case because the employer never told him that a gross misconduct on his part would lead to him being fired.
The law is indeed an ass....

Let the young lad look for a new job and chalk this one down to an experience.
 
Re: what a country...

I agree - but there's a distinction between what's legal and what isn't.

There was a case of a guy who was fired from work for downloading porn. While most people in this situation would just run for the nearest corner, he had the neck to take a case for unfair dismissal on the grounds that he hadn't been informed that downloading porn was a sackable offence. He won.

The point is that what might appear rational isn't always compatible with the law. It's in employers' interests to cover their backsides on issues such as this.
 
safety in the workplace

This young man and his family are 'devastated' that he has lost his job for misuse of a dangerous power-tool. He had been in this job 1.5 years and whether the "training" was formal or informal should have known the appropriate use of the tool by then.

There is no question about what he did.

There is no question on the clear and present risk to himself and everyone around him.

There is no question that in keeping with the Safety in the Workplace legislation the employer HAD NO OPTION but to get him off site.

The prevarication of a number of posts above "Ah shure he's only a kid" etc. are dangerous and irresponsible. When people around me in work are behaving in a manner which endangers me or my patients I immediately make a formal complaint. Period.

He will be the more mature for it that his bizarre response to a small irritation is responded to with the seriousness it warrants.
 
Re: safety in the workplace

Sorry what happened the guy. Basically the industry he is in (joinery) considers itself very lucky to be even underwritten for insurance, these days. If it lost that, there would be a few more unemployed.

If at worst it (nail) had hit somebody, everyone would suffer due to the rise of premium or withdrawal of insurance cover.

I agree that it's rough (but fair) justice, but would love to hear what the same guy has to say at the age of 35? Possibly "it was a cheap lesson well learnt".

Cheap in the fact that nobody was injured.

On the other side of the coin, and it must be taken in to account that none of us know him, but his family should not appear to be so upset. It may be putting undue pressure on him, at an age when sensitivities are sometimes at their most extreme.
 
Re: safety in the workplace

Just another note:

An employer is under a legal duty under the Health & Safety Act to employ competent staff who are not a danger to themselves and others. If he did not get rid of the young man, he'd only be leaving himself wide open for a lawsuit from another employee/customer/visitor to the site/.....
 
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