Refusal to obey Covid rules ‘akin to a workplace assault’, WRC finds

Ruling given in case of direct provision centre worker who failed to wear PPE or ensure social distancing

A direct provision centre worker who failed to wear PPE or enforce social distancing during the first weeks of the Covid-19 pandemic was guilty of gross misconduct akin to a workplace assault, the Workplace Relations Commission (WRC) has found.

Siarhei Klimasheuski’s complaint against Tattonward Ltd under the Unfair Dismissals Act was dismissed by the commission in a decision published on Saturday.

He was sacked for gross misconduct over a series of incidents in April 2020 in which he failed to comply with new Covid-19 procedures in place at a Monaghan direct provision centre operated by Tattonward, the company said, denying unfair dismissal.

Mr Klimasheuski was on leave when the Covid-19 protocols were explained to staff on March 25th, his solicitors told the WRC, adding that the procedures used to dismiss him were unfair.

The office administrator at the centre, Kathryn Kennedy, said the complainant had been provided with Personal Protective Equipment (PPE) in the days before the briefing and that she fully explained the new procedures to the complainant when he returned to work the following day, March 26th.

She said it was a “serious time” for the company and that cleaners and porters like Mr Klimasheuski were the “first line of defence”.

“There was not room for laxity or carelessness,” she told the WRC.

On April 1st, the Wednesday after Ms Kennedy briefed the complainant, another porter reported Mr Kilmasheuski was not wiping down door handles with sanitiser or cleaning communal areas.

But despite leaving a note in the porter’s cabin with the spray bottles Mr Klimasheuski was to use on the night shift, she said, the next morning “it was clear the products had not been used”.

The centre’s chef, Mary Mannering, gave evidence that on April 8th the complainant “waved his hand and shrugged” when she asked him to get residents to use hand sanitiser.

He then “started raising his voice” when she sent a kitchen porter out to limit the number of residents coming into the canteen.

“By his actions he was the weak link in the defence to infection and he was exposing them all to risk,” she said.

She said, in another incident a week later, Mr Klimasheuski failed to manage the numbers in the canteen and was not wearing either a mask or a plastic apron as required.

Mr Klimasheuski’s colleague Gitas Stamburas said he explained the Covid-19 protocols to the complainant in Russian and that he had “understood them”.

The company said the complainant was suspended after the third alleged incident on April 14th and investigated before being dismissed by letter on May 22nd.

His sacking was upheld on appeal to the company’s managing director, Patrick Gillick, who said Mr Klimasheuski “denied that the protocols were ever explained to him” and “denied what the other witnesses said against him”.

Mr Klimasheuski’s position was that the protocols should have been explained to him in Russian, as English is not his first language – and that this didn’t occur until after the “alleged health and safety breaches”.

Mr Klimasheuski gave evidence that no PPE was provided to him before April 10th and that he had to buy his own mask and that he had only been briefed to wipe down door handles by the other Russian-speaking employee.

He said it was untrue to say he was “reckless or did not care about the dangers of the virus” and accused the company of being reckless by not issuing him with PPE earlier.

In her decision, adjudicating officer Emile Daly found there had been “a considerable number of significant defects in the dismissal process”.

These included the decision-maker discussing the matter with two witnesses in advance of making the decision; the lack of a disciplinary hearing; and the failure to provide Mr Klimasheuski with a number of witness statements before the appeal hearing.

But Ms Daly found the complainant’s own evidence undermined the basis for his claim.

She found Mr Klimasheuski’s evidence “inconsistent” and that of the company’s witnesses “more credible”, she wrote.

Ms Daly wrote that she was satisfied the complainant was given PPE in late March and that the protocols were explained to him in both English and Russian.

He had admitted taking off his mask at work, failing to wear the plastic PPE gown on April 14th, 2020 and failing to “consistently” wipe surfaces down, ask residents to use hand sanitiser or monitor the number of people in the canteen.

“Any one of these failures to act could have resulted in the transmission of the virus within the centre,” she wrote.

“I am satisfied that these actions were acts of gross misconduct akin to a workplace assault on a colleague or resident, because in a way that is exactly what it was,” she wrote.

Despite the “clearly identifiable” defects in procedure, she found Mr Klimasheuski was not unfairly dismissed.