EMPLOYMENT APPEALS TRIBUNAL
Pat The Baker
against the recommendation of the Rights Commissioner ref: r-142968-ud-14/SR
in the case of:
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Dr. A. Courell B.L.
Members: Mr. D. Morrison
Mr M. McGarry
heard this appeal at Castlebar on 27th May 2016 and 5th September 2016
Appellant: Ms. Roisin Bradley, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Respondent: Mr. Brendan Donnelly, F G Phelan & Company, Solicitors, Davitt Place, Swinford, Co Mayo
This case came before the Tribunal by way of an Employer appeal of the Rights Commissioner Decision ref: r-142968-ud-14/SR under the Unfair Dismissals Acts, 1977 to 2007. Hereinafter the appellant will be known as the employer and the respondent the employee.
Appellant’s (Employer) Case
The employer is a large bakery with 450 employees that supplies baked goods to retail outlets nationwide. There are 8 depots and each depot has a delivery route. The employer tries to recruit their drivers local to the depots to take advantage of local knowledge and for PR purposes. The drivers represent the employer brand, are responsible for maintaining relationships with the customers, balancing stock and collecting money. There are ‘route’ drivers that have a specific route that they deliver to daily and ‘relief’ drivers that cover any of the routes if a driver is unavailable. The delivery vehicles are for commercial use only. The employee worked as a ‘route’ delivery driver in Mayo.
The drivers report directly to CC who is the depot manager based in the Galway office. The first issue arose with the employee in September 2011. A Store Manager complained that the employee had falsified a stock card in a large grocery store. The employee was barred from entering the store for the second time as this issue had happened before. There were a number of other complaints about the employee from retail outlets on his Mayo route. The employee was invited to an ‘investigative disciplinary’ meeting on the 29th of September 2011 by letter of the 26th of September 2011. The items to be investigated were;
“(1) Your poor service performance, in particular your failure to meet with the Manager of (large grocery store) as agreed with CC on the 30th of June 2011.
(2) The unacceptable condition of your handheld, recently sent to Granard for repair work (see details and photos attached)
(3) Falsifying a (large grocery store) stock card (see details of copy stock card below re. pancakes for w/e 24/9/11) resulting in the banning of your delivery to this store once again”
The meeting never took place as the employee went on long term sick leave to return on the 7th of April 2012. A ‘return to work’ meeting was held between CC, FB from HR and the employee (no minutes were taken of this meeting). The meeting was to discuss where the employee could work as he was barred from at least one retail outlet on both of the delivery routes in Mayo. The only position the employee could take up was a relief driver position in Galway. All 8 routes in Galway had route drivers so the relief driver was the only position available. The difference between the Mayo and Galway positions is a 100km round trip to and from the Galway depot from the employee’s home. The employer does not provide transport to and from the depots for it’s employees; the employee was very clear on this, as when he asked he was told there was no spare vans. As the employee was a relief driver there was occasions where if he was finishing his route close to his home he could take the van home instead of returning to the depot. He needed permission to do this as the employer had to check where the van was needed for the morning. When the employee was a route driver in Mayo he took the van home every night.
PR took over as depot manager from CC in December 2012. PR had been in the (bakery) business all his life and had employed the employee previously when he had run his own business. PR checked all of the routes and confirmed that the employee was barred from at least one shop on every route in Mayo; PR knew all of the shops on the route from his own business.
There are 5 relief drivers for 8 delivery routes. CC trained PR and had informed him that relief drivers were not permitted to use the delivery vans for their own use. The vans are not suitable for social driving; only to get to and from the depot. The employee was aware that if circumstances allowed he must ask permission to take the van home in the evening. The employee asked to use the van so much that PR had to refer the issue to HR. By email of the 3rd of May 2013 PR had raised the issue of “use of his own car to travel to and from work” among other historical issues.
A meeting was arranged between HR, PR and the employee for the 15th of May 2013 (no minutes taken). During this meeting the employee asked could he use a van to get to and from work; the answer was a definitive no. From that date on PR never gave the employee permission to take the van home in the evenings. There was no ambiguity after the 15th of May 2013.
A further meeting took place on the 27th of June 2013 with PR, HR, the employee and PoC ( his representative), where the employee admitted he had taken the van home 3-4 times since the 15th of May meeting. The employee never asked and was never given permission to take the van home. The meeting was adjourned for “evidence.”
On one occasion PR did ask the employee to collect him as he had broken down and was stranded. If other relief drivers brought the vans home in the evening it was because they were within 5km and they could swap vans the night before they were taking over; they were Galway based. The 5km boundary was put in place for economic reasons.
The HR Manager FB gave evidence of the employer’s national policy on van use; the vans are for work use only. There is one spare vehicle in every depot but if the employee took it and then another van broke down there would be no replacement and there were the associated diesel costs. FB only became aware that PR had previously given the employee permission to use the vehicle, further discussions were held with PR but no disciplinary action was taken.
The back to work meeting took place as the employee could not return to his Mayo route, there was no point continuing with a disciplinary process 1.5 years after the incidents occurred. The employee was not happy with having to use his own transport to get to and from the Galway depot but the only other option was for his employment to be terminated. A number of meetings took place to resolve the employee’s ongoing issues. The meetings took place on 20th December, 14th of February, 22nd February, 27th of February; the lack of use of a van was a common tread in every meeting.
At the meeting of the 15th of May 2013 having to use his own car to get to work was raised again by the employee. He was very clearly told that there was no use of a van for his role. It transpired that he had been given permission before to take the van home but a very clear line was drawn at that meeting, there was no doubt going forward that the employee was not permitted to take the van home. FB got a tracker put into one of the relief vans to monitor the situation.
By letter of the 25th of June 2013 FB invited the employee to an investigative disciplinary meeting on the 27th of June 2013 to discuss the following issues;
“(1) On Tuesday 11th June 2013, while covering R804, you failed to deliver (stock to a store). The Store was unable to fill 4 orders correctly as a result.
(2) On Thursday 13th June 2013, while covering R804, you failed to call to (a store).
(3) Unauthorised use of company vehicle.
In advance of the meeting FB got the van tracker report; this is only one van the employee would use out of 3-4 vans. The tracker report shows 8 occasions where the employee used the van for personal use. The employee admitted to using the van 3-4 times so FB adjourned the meeting to give the employee time to read the tracker report in advance of a re-convened meeting.
Further issues arose with the employee so by letter dated the 23rd of August 2013 he was invited to an investigative disciplinary hearing on the 5th of September to discuss the issues outlined:
“(1) On Wednesday 7th August I received a phone call from (a store) requesting their delivery, when I text you with the details you replied by saying you had been at the store, later that afternoon I received another phone call to say that they had no (missing stock) – the store confirmed you had not been back to them with the products. As a result of this they contacted Musgraves to highlight our lack of service and have since acquired a new supplier.
(2) Unauthorised use of company vehicle – following from our meeting on 27th June 2013”
The letter also outlined that the employer deems these issues to be acts of Gross Misconduct. The grievance and disciplinary procedure was sent to the employee with every letter.
The re-convened meeting took place on the 5th of September 2013. The employee maintained he was given permission to use the van on the occasions between the 15th of May and 27th of June; PR refutes giving any permission after the 15th of May. The employee said he did not use the van for personal use after the 27th of June as that was when he realised he was not permitted to, but it was clear form the 15th of May that he could no longer use the van. FB accepts that the employee did not use the van for personal use after the 27th of June 2013.
After consideration FB decided that on the balance of probabilities the employee could not be unaware that he was not permitted to use the van for personal use after the 15th of May. As unauthorised use of company vehicles is deemed to be Gross Misconduct FB was left with no alternative but to dismiss the employee. Trust had been lost in the employee; he was barred from the routes in Mayo and his continued unauthorised use of the company van left the employer with no alternative.
The claimant lodged an appeal and this was heard by EB who gave evidence to the Tribunal in relation to his decision to uphold the decision to dismiss the claimant.
EB was satisfied that the claimant was made aware at the informal meeting of 15th May 2013 that he was not to bring the van home with him from then on. However the claimant brought the van home a number of times between that date and the date of the 1st disciplinary hearing on 27th June 2013 and EB felt he was reasonable in upholding the decision to dismiss the claimant. EB agreed that the claimant had not taken the van home between 27th June 2013 and 5th September 2013, being the date of the 2nd disciplinary meeting.
The claimant told the Tribunal that the meeting of 15th May 2013 was an “informal discussion over a cup of coffee” and that although the issue of bringing the van home with him was discussed he was left with the impression that this was okay once the depot manger gave permission to do so. After that meeting and up until he sought clarity on the issue at the meeting of 27th June 2013 the claimant had on occasion taken the van home with the permission of the depot manager. It was at the request of the depot manager that the claimant sought clarity on this issue. At this meeting it was made clear to him that he was not to take the van home with him and he did not do so, except on one occasion when the depot manager asked him to do so.
The claimant contended that he was unfairly dismissed as he had ceased to take the van home once it was made clear to him that this was not allowed.
This case came before the Tribunal by way of an appeal by the employer against the decision of the Rights Commissioner dated 12th January 2015.
The claimant was dismissed by letter dated 20th September 2013 for the unauthorised use of a company vehicle.
There was a dispute as to whether the claimant only used the vehicle when authorised to do so by his line manager. In any event, it was common case that he never used the vehicle, with one exception when requested to do so, after 27th June 2013. The claimant was called to an investigation meeting on 27th June 2013 and another on 5th September 2013.
The decision to dismiss failed to take account of the fact that the claimant did not use the vehicle for personal use after it was made clear to him that he was not to do at the meeting of 27th June 2013.
Having considered all the evidence, the Tribunal finds that the respondent did not discharge the burden of proving that the dismissal was fair. Therefore the Tribunal determines that the claimant was unfairly dismissed.
The appropriate redress is compensation for loss. The claimant was unavailable for work and claiming Illness Benefit from the date of his dismissal until he found alternative employment in August 2014 and therefore had no loss. However in accordance with section 7(c)(ii) of the Unfair Dismissals (Amendment) Act, 1993 the Tribunal varies the decision of the Rights Commissioner Ref: r-142968-ud-14/SR and awards the claimant €1,752.00, this being just and equitable in all the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal