EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Jimmy Joyce UD446/2011
- Claimant MN457/2011
Stobart (Ireland) Driver Services Limited
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O’Leary BL
Members: Mr. R. Murphy
Mr. T. Brady
heard this claim at Dublin on 9th July 2014
Claimant : Karen O’Loughlin, SIPTU, Liberty Hall, Dublin 1
Respondent : Alastair Purdy, Purdy Fitzgerald, Solicitors, Kiltartan House, Forster Street,
The decision of the Tribunal was as follows:-
The claimant was originally employed by another transport company which was contracted to a large supermarket chain to operate a chilled and frozen foods warehousing and national distribution centre. The respondent took over the operation and a transfer of undertakings took place in respect of the claimant and other employees.
The claimant had over 12 years experience as a truck driver and had worked for the previous company from the 7th July 2007 to the 21st October 2010 when the respondent took over the operation.
The incident in question took place on the night of the 4th November 2010. The claimant had commenced work for the evening and acquired a truck to hook up to a trailer for his deliveries. When he attempted to exit the site the trailer dislodged from the truck and hit the ground.
An incident report was completed with the Operations Manager (JL) on shift that night who deemed it to be a minor incident. The following day the claimant was sent a letter stating he was on paid suspension leave pending an investigation into the incident.
An investigation meeting was held with the claimant and his representative on the 8th November 2010. A disciplinary meeting was then held with the claimant and his representative on the 19th November 2010. A further disciplinary meeting was held on the 26th November 2010.
A letter dated the 29th November 2010 was informed he was summarily dismissed for gross misconduct as and from 26th November 2010. The claimant appealed the decision to dismiss him. The appeal hearing took place on the 6th January 2011. The decision to dismiss the claimant was upheld.
The then Operations and Planning Manager (D) gave evidence. He held the claimant’s hearing of appeal on the 6th January 2011 on behalf of the respondent.
He explained the respondent had taken over from the original employer and all drivers were given an induction course. The claimant’s course took place on the 26th October 2010 and he signed off on the programme. The induction course, amongst other procedures, involved the correct procedure for connecting the “fifth wheel” – coupling trailers to trucks. The coupling safety device on the truck in question was the “red dot” system. D explained how this safety system worked and the potential consequences of its failure.
The appeal hearing took place on the 6th January 2011. The incident was discussed and D questioned the claimant about the safety system on the truck in question but the claimant was not sure which type it was. D found this fact very alarming as it would appear the claimant had not checked the safety device at all when hooking up the truck to the trailer before exiting the site. D did not inspect the vehicle himself before the appeal hearing.
D told the Tribunal that he found no alternative but to uphold the original decision to dismiss the claimant in all the circumstances. A letter dated the 11th January 2011 was sent to the claimant to inform him of this decision.
The claimant, his Shop Steward and his Trade Union Official gave evidence.
The claimant explained that he had been driving trucks since 2002 and had experience with coupling vehicles, “fifth wheels” and safety systems. When he and his colleagues had transferred their employment to the respondent company they had attended an induction course. He told the Tribunal that he, and his colleagues, had only viewed a video concerning the “red dot” safety system on vehicles.
On the 4th November 2011 he attended work for his late shift. It was a dark wet night. He retrieved his paperwork and went to get his truck. The first truck he acquired was faulty, he returned it to the maintenance area and informed the Manger (JL). Jl told him to pick up another truck in the maintenance area. He did not know why this truck was in the maintenance area.
He located the trailer he was to use and reversed the truck to the trailer and heard the click. He carried out his normal checks on the vehicle using his torch to see properly. He told the Tribunal, when asked, that he could not recall which “fifth wheel” safety feature was on the particular vehicle but it had locked into position. He pulled the truck and trailer to the left and heard an almighty crash. The trailer had come away from the truck and fallen to the ground. He checked no-one was injured and reported the incident to JL. JL ordered him to return the truck to the maintenance area. An incident report was completed and he, the claimant, was told to go home. He was informed he was suspended pending an investigation into the matter.
He attended the investigation, disciplinary and appeal meetings with union representation.
The claimant gave evidence of loss.
On cross-examination he said he had not been aware of the “red dot” safety system before viewing the video and the induction course. He assumed all safety systems were all the same.
He agreed it had been the correct decision to dismiss him pending an investigation of the incident but the decision to dismiss him had been a severe sanction. Accidents did happen and had in the past with other drivers.
The claimant’s Trade Union Official stated that the claimant’s good work record had not been taken into account when the decision was made to dismiss the claimant. A lesser sanction could have been implemented. No answers had been given as to why the truck involved had been stored from the maintenance area on the night in question.
The Tribunal have considered the sworn evidence and submissions adduced by both parties in this matter.
The claimant employment was subject to a transfer of undertakings. An induction course was held but it appears this training was not comprehensive in respect of certain safety aspects, for example the video shown.
In coming to their conclusion the respondent did not take into consideration the claimant’s good service record.
The Tribunal finds the claimant was unfairly dismissed, however, it finds the claimant had contributed to this dismissal in not carrying out a complete safety check before moving the truck and trailer.
Accordingly, the Tribunal awards the sum of €7,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Loss having been established the Tribunal awards the sum of €2,300.00, this being two weeks gross wages, under the Minimum Notice and Terms of Employment Acts, 1973 to 2007.
No evidence was adduced in respect of any claims under the Organisation of Working Time Act, 1997 and therefore the claim is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal