ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000258
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 24/03/2016
Workplace Relations Commission Adjudication Officer: Michael Hayes
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The chronology of events were I was told by security on checkpoint at my place of employment that it was a breach of the law to drive an uninsured vehicle in public places without tax, insurance, nct and proper licence on the 27/6/2015. I reported this to my Manager that day. He disagreed and said it was ok to do so and promised me a letter to that effect from a second Manager. I went to the Garda station to check this that evening. The Garda told me it was unlawful. I contacted my solicitor who wrote to the Manager on the 30th of June 2015 setting out the concern and to head of HR setting s out my concerns. My solicitor also wrote to them on the 20th of July 2015 in response to theirs of the 16th of July 2015 in which the manager stated '' we have no requirement to operate outside the grounds so no agent should be requested to drive a works vehicle outside the grounds''. My solicitor set out the law, that I was being asked to drive in public places and under the Road Traffic Acts a public place is defined as any street, road or other place to which the public have access with vehicles. In the meantime I had a number of meetings with Gardai. I notified Health and Safety. And informed Operations of the situation and communicated this to Management. All other than Management agreed that it was a breach of the law. I spoke with head of HR. She advised she was not a lawyer and would need to consult with the company's lawyer and would be back to me. Therefore I thought that it was in order for me to wait until that confirmation was received. On the 20th of August 2015 I was asked to drive in to a public place and I explained why I could not. I was suspended on the 20th of August 2015. An investigation took place and 21st of August 2015. A disciplinary hearing took place on the 16th of September 2015. On 22/9/15 a finding of gross misconduct was found against me for failure to follow a reasonable instruction. I appealed this and the decision was upheld thus my dismissal was final. I wish to claim unfair dismissal and additionally that I was dismissed in breach of the Whistleblowers Legislation.
The complainant provided detailed and specific submission in relation to his interaction with the respondent as it relates to the obligation to comply with the provisions of the Road Traffic Act 1961. Furthermore he asserts that those efforts included discussion with the customer, the HSA and the Garda (details provided) all of whom assured him that his interpretation was correct. Additionally, his solicitor wrote to the respondent in the matter on numerous occasions prior to his suspension and dismissal. The incident which led to dismissal occurred on the 20th of August when he was asked to drive containers through a public place at the customer’s site. The complainant submits that the herein dismissal was in breach of s. 6 (2) (b) of this Act as amended by the Protected Disclosures Act, 2014. The disclosure was that the respondent was in breach of the Road Traffic Legislation (driving vehicles in public places without the requisite insurance, tax, NCT and correct licences).
Respondent’s Submission and Presentation:
The respondent submits that the complainant was dismissed fairly in accordance with specific contractual provision following an act of gross misconduct viz. failure to carry out a reasonable instruction. He had been employed in his position since early December 2005. Towards the end of June 2015 he raised concerns in relation to driving company vehicles in public places without tax, insurance, NCT and proper licence. His manager provided assurances to the effect that these elements were not required in the course of conducting operations on the customer’s site. In this regard he offered to have a more senior manager provide written assurance, which was provided by letter dated 16th of July 2015. Despite the same he continued to raise concerns and asserted that he had raised the issue with the Garda, HSA and the customer. He failed to provide the documentation as requested by the respondent from any of these bodies. Matters came to a head on the 20th of August when despite the above the complainant again refused to comply with his managers instruction to move a number of containers. He was suspended on the day and an investigation of the matter was conducted. A disciplinary hearing was convened on the 16th of September and a follow up meeting held two days later. The disciplinary officer was satisfied that the assurances of the 16th of July were sufficient and it was pointed out to the complainant at hearing that other companies who are doing the same work on the customers site do not tax and NCT their vehicles. He was asked whether if returned to work on the following week he would be prepared to carry out his duties as heretofore. “He stated that he would not and that he did not accept the letter …………He stated that he would not be in a position to carry out these tasks without a reply from the Company’s Solicitors.” He was dismissed and appealed the same specifically stating in his grounds of appeal “I do not deny the finding that I refused to drive or that I would in future refuse to drive under the above circumstances but I state that I was correct to refuse and continue to refuse in such circumstances”. The appeal failed.
I am satisfied that the instruction given to the complainant on the 20th of August was legitimate in the context of the contractual requirement and the circumstances described to me. Accordingly the refusal to carry out that instruction amounted to gross misconduct as defined in the respondent’s rules.
It stands alone therefore as justification for dismissal in this case and I find that the complaint is not well founded.