Sacked engineer fails with claim after leaving hole in Dundee street

A service engineer sacked for leaving a gaping hole in a Dundee street, was fairly dismissed, a tribunal has ruled.

Virgin Media engineer Dennis Swadel, of Dochart Terrace, claimed he should have kept his job over the episode in Baxter Park Terrace. He said he had moved the pit chamber guard only a few inches and the health and safety breach was minor.

The employment tribunal chaired by judge James Hendry heard the episode happened after Mr Swadel had been given a final written warning.

It had been put on his record after audits revealed he hadn’t been doing his job properly. He had ticked boxes in forms indicating work had been carried out when the audits suggested otherwise.

He was found guilty of falsifying submissions, breach of trust and not complying with a performance improvement plan.

Mr Swadel, who had been through a period of stress in his personal life, was working in Baxter Park Terrace on October 31 last year when field manager Alan McEwan drove past.

The tribunal judgment published on Friday said Mr McEwan saw Mr Swadel working at the side of a pit chamber. The lid had been slid off, the pit was fully open and there was no pit guard.

He then watched Mr Swadel try to close the pit by kicking it and go to his van further up the road. The service engineer drove his van closer to the open pit, got out, erected the pit guard and fully closed the pit.

Mr McEwan was concerned at what he had seen, asked to speak to Mr Swadel in his vehicle and told him he was being removed from the field and should go home.

Mr Swadel responded: “Alan, if you report this it could cost me my job.”

At a subsequent hearing Mr Swadel disputed that the pit was fully open but he accepted he wasn’t using his pit guard. He explained his actions as a process to identify which installations were Virgin’s and which belonged to BT, as the two were similar. He had assessed the risk, saw no one was in the street and thought it was safe.

He accused Mr McEwan of “hypocrisy and victimisation”, and contended that his superior had turned up at other jobs when no pit guards had been used and there were no disciplinary proceedings.

He was dismissed and the decision was upheld at an appeal. He went to the employment tribunal alleging unfair dismissal.

The tribunal said Mr Swadel alleged Mr McEwan was ill disposed towards him and the evidence against him was fabricated.

His dismissal and appeals were, however, conducted by other managers who bore Mr Swadel no ill will and were independent.

The tribunal did not accept that Mr McEwan was spying on Mr Swadel and believed that, given Mr Swadel’s record, the field manager could not be criticised for keeping an eye on the service engineer’s work.

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