By Claire Henry
A site foreman has been fined €12,500 for failing to notify two staff members of the presence of asbestos while carrying out work on a city centre building site.
Dennis McAuliffe (51) was employed as the site foreman by McAleer & Rush Ltd., a London based construction company who were the main contractors for the refurbishment work being carried out at Findlater House, Cathal Brugha St. in June 2016.
McAuliffe of Killnaswalla, Nenagh, Co Tipperary, pleaded guilty at Dublin Circuit Criminal Court to placing at risk the safety, health or welfare of persons at work at the address on June 23, 2016. He has no previous convictions.
Frank Kearns, an authorised inspector with the Health and Safety Authority (HSA), gave evidence that on that date, a sub-contracting team hired by McAleer & Rush Ltd. found an asbestos warning sticker under a roof tile.
The team had already removed approximately 80% of the roof tiles. The two employees who found the sticker informed McAuliffe and walked off the site.
The court heard that each roof tile measured eight foot by six foot, and there was an estimated fifty square meters of tiles in total. The tiles dated back to the 1970s and were a composite tile that was made up of insulation and a high composite of asbestos.
Inhalation of this material can be very serious and the latency period can be between 20 and 40 years, the court heard.
Mr Kearns testified that the defendant notified the directors of McAleer and Rush as well as Telstar investments, who operated three licensed premises, including Fibber Magees and The Living Room, on the ground floor of the building.
McAuliffe failed to notify his own staff after the sub-contractors had left and two of these men began to clean and tidy the site.
These men were not directed to do so by McAuliffe’s or any other staff member, the court heard.
Director of Telstar Investments Ltd., Noel Murray was nformed of the presence of asbestos and became concerned that sealing of the site would block the emergency fire exit of his premises and about the risk of falling roof tiles to his patrons.
When McAuliffe attended the site the following morning with asbestos specialists MCE to seal off the area, they found Mr Murray on the site operating a forklift truck with a wooden pallet.
Mr Murray and two employees had already removed the remaining 20% of roof tiles and were sweeping up the area, placing the materials into bins.
The HSA took action to seal the area and launch an investigation. A sample of the tile was taken for testing and it was confirmed that the tile did contain asbestos.
Mr Kearns said that in this particular instance he did not believe that the workers who had been exposed to asbestos where at risk of any long term effects.
During this investigation, McAuliffe was interviewed by the HSA under caution.
In the course of this interview, McAuliffe described himself as a site manager who had been employed by McAleer & Rush Ltd for two years and held a diploma in construction site management and the Northern Ireland equivalent of a safe pass card.
McAuliffe answered all questions during this interview and cooperated fully with the investigation.
The court heard that the area where the roof tiles were removed were not in the initial construction plan and subsequently were not included in two surveys carried out in March and June 2015.
Ronan Kennedy SC, defending, outlined to the court his client’s excellent work history to date and submitted that this incident was the only blemish on his client’s record.
Mr Kennedy also noted that this client had been diagnosed with level four throat cancer and was unable to work for ten months, but had relieved the all-clear in January 2021.
Passing sentence, Judge Pauline Codd noted McAuliffe’s guilty plea, his compliance throughout the investigation and his excellent work record, which spanned over 30 years.
Judge Codd also noted that it was accepted by the HSA inspector that there was a grey area as to who had the authority to close down the site, with Mr Murray having access to the site. She noted that McAuliffe has no previous conviction and has overcome serious health issues.
The court heard that the maximum fine available for this offence is €3,000,000. Judge Codd said that this case was in the lower range of this type of offence and set a headline fine of €30,000.
Taking the mitigating factors into consideration, Judge Codd reduced this to fine of €12,500, which must be paid within the next 12 months.
Last July (2021) Telstar Ltd was fined €7,500 for exposing two staff members to the risk of inhaling asbestos fibres.
The court heard then that Mr Murray had employed their own asbestos specialist afterwards and expended €38,500 in a clean up, and that Telstar Ltd was fully co-operative with the HSA.
Mr Murray told the court then that he accepts now that it was the wrong thing to do, but did not realize at the time how serious it was.
McAleer & Rushe UK Ltd, has already been fined €100,000 for failing to carry out an asbestos risk assessment in this part of the building works.