UDD1738

This appeal is brought on behalf of DHL Express (Ireland) Limited (“the Appellant”) against the decision of an Adjudication Officer (ADJ00001367, dated 30 January 2017) under the Unfair Dismissals Act 1977 (“the Act”). The Notice of Appeal was received by the Court on 20 February 2017. The Court heard the appeal in Dublin on 13 July 2017.The Appellant called three witnesses: Ms Lorna Quinlan, Mr Alan Butler and Mr Michael Farrell. Mr Coughlan (“the Respondent”) gave evidence on his own behalf and did not call any other witness.

The Respondent had been employed by the Appellant as a courier/van driver for some 11 years up until he was summarily dismissed on 24 November 2015 as a consequence of an incident involving his van that had occurred on 19 October 2015. He was paid €692.72 gross per week. He referred a complaint under the Act to the Workplace Relations Commission on 14 January 2016. The Adjudication Officer assigned to hear the matter determined that “the sanction of dismissal for gross misconduct was disproportionate having regard to all the circumstances.” She awarded re-instatement with effect from 28 September 2016 (the date of hearing at first instance).

The Respondent has had a number of incidents in the past (in 2012 and 2013) that resulted in some damage to the Appellant’s company vehicle. The Respondent received a written warning for the 2012 incident and a final written warning for the 2013 incident. Both written warnings were active for a period of 12 months from the date they were applied to the Respondent. Following the 2013 incident, the Respondent successfully availed of a driver’s retraining course (paid for by the Appellant) and did not have any further incidents for a period of some two years until 19 October 2015.

On 19 October 2015, the Respondent returned to the Appellant’s Cork depot in his seven-metre van. There was an articulated truck parked adjacent to the entrance to the depot with the result that the space available to vehicles entering or leaving the premises was extremely narrow. The driver of the truck was present at the entrance. The Respondent believed that that driver beckoned at him to continue to drive his van through the available gap. In doing so, the Appellant scraped one side of the van, causing some damage to it. The Complainant immediately brought the incident and the damage to his manager’s attention. The Appellant told the Court that it cost €2,500.00 to repair the damage.

An investigation meeting took place on 4 November 2015 in the course of which CCTV footage recorded at the time of incident was reviewed. The footage proved to be of no assistance as it did not record either the incident itself or the actions of the other driver whom the Respondent believed had gestured at him to continue driving the van into the depot yard. That driver was also interviewed. His version of events was that he had no recollection of directing the Appellant to continue driving into the yard on 19 October 2015. The Respondent admitted at the meeting that he had misjudged the space available to him when trying to drive into the depot compound between the parked truck and the fencing on the other side of the entrance. The investigation was conducted by Mr Gary Molloy, the Service Centre Manager at the Appellant’s Cork depot.

Mr Molloy wrote to the Respondent on 12 November 2015 with the outcome of the investigation. He states as follows in this letter:

• ‘In summary you misjudged the space when trying to drive past a truck parked at the gate of the Cork depot and consequently caused significant damage to the driver’s side of the van when you collided with the fencing. You are therefore requested to attend a disciplinary hearing in regard to the aforementioned incident.
  Please be advised that the above incident could be considered Gross Misconduct under 5.4.3 of the company’s disciplinary process:
  “Failure to protect and safeguard company property”
  And a disciplinary hearing could result in disciplinary action up to and including your dismissal from the company”’.

The disciplinary hearing was conducted by Mr Alan Butler, an Area Operations Manager with the Appellant. It took place on 16 November 2015. The Respondent was represented at the meeting by his SIPTU Representative. It is common case that the Respondent once again at this meeting accepted responsibility for his actions on 19 October 2015. However, extensive reference was made by Mr Butler to the Respondent’s past driving incidents and the final written warning he had received in 2013, notwithstanding the fact that this warning had expired some 12 months previously.

By letter dated 24 November 2015, Mr Butler informed the Respondent that he was being summarily dismissed with immediate effect for gross misconduct. The following paragraph from the letter of dismissal echoes the language used in the letter inviting the Respondent to the disciplinary hearing:

• ‘This is a most serious situation from the company perspective and having carefully considered the facts of the case and the representations made by yourself and [PO’s] (colleague), the company has taken the view that there is no other alternative in this case except to terminate your employment for reasons under Gross Misconduct where it has been determined that you failed to protect and safeguard company property.’

• •‘It is the company’s opinion that you were driving carelessly and your poor judgment caused over €2,500 of damage to the driver’s side of the van when you collided with the fencing.

  •This is an extremely serious issue in light of your history with causing damage to both the company van and customer property.

  •The company has previously provided you with substantial training and has gone to extensive efforts to ensure that you were driving in a safe manner.

  •The company has serious concerns about your ability to safely carry out your duties as a driver and can’t trust that you won’t have a similar lapse in judgment which may result in further damage or potential injury to yourself or others.

  •The company cannot accept this level of negligence and poor judgment from a driver who takes a van on public roads on a daily basis.’

The Respondent appealed from this decision by letter dated 25 November 2015 to Mr Michael Farrell, Head of Operations. In setting out the basis for his appeal, the Respondent raised concerns about the company’s apparent reliance on previous incidents to justify his summary dismissal. Mr Farrell replied with his decision on the appeal by letter dated 15 December 2015 in which he states the following:

• ‘Whilst I appreciate the point you have made that this latest incident was just an error of judgement, I do not accept that we cannot and should not consider the other serious incidents that you have been involved in over recent years. As a responsible organisation we have made every effort to assist you through retraining in an effort to address any driving skills; however, we now need to recognise the duty of care we have to the public, other staff and to you yourself. With that in mind I feel I must uphold the finding of dismissal in the letter dated 24^thNovember 2015.’

Evidence Given by the Appellant’s Witnesses

Ms Lorna Quinlan, a HR Business Partner with the Appellant, gave evidence in relation to the Appellant’s Disciplinary Procedure and the fact that it is a procedure agreed jointly with SIPTU. She told the Court that the duration for which a final written warning remains live on an employee’s record in accordance with the Disciplinary Procedure is twelve months. She also gave evidence in relation to the practice whereby the Appellant’s Facilities Department in Dublin retains records of road traffic accidents involving vehicles in the Appellant’s fleet which are used to calculate drivers’ safe driving bonus. On cross-examination, Ms Quinlan accepted that she had no access to the records retained by the Facilities Department and therefore could not give evidence in relation to the relative cost of the damage that may have been caused by other drivers to company vehicles in 2015 vis-�-vis the damage estimated at €2,500.00 caused by the Respondent on 19 October 2015. Neither was the witness able to confirm or deny that other sanctions short of summary dismissal had been considered in the Respondent’s case.

Mr Alan Butler, Area Operations Manager, gave evidence of his role in the disciplinary process involving the Respondent in late 2015. He told the Court that he met with the Respondent and his representative on 16 November 2015. He said he gave the Respondent an opportunity to recount his version of the incident of 19 October 2015. Mr Butler informed the Court that has was fully aware of the Respondent’s previous incidents of poor driving causing damage to a company vehicle as in the normal course the local Station Manager reports such matters routinely to the Area Manager. He went on to tell the Court that he made the decision to summarily dismiss the Respondent for the following reasons:

• 
  •As Area Manager, he had to be sure that a driver of a large company vehicle, such as the one assigned to the Respondent, was capable of driving such a vehicle safely;

  •He had a responsibility to ensure the safety of the public in the circumstances;

  •He had concerns about the Respondent’s capability as a driver arising from the poor judgement he had displayed on 19 October 2015 when he attempted to drive his vehicle through a very small gap which the Respondent had acknowledged in the course of the disciplinary meeting and had apologised for.

On cross-examination, Mr Butler was asked why – if it was the case that he posed such a risk to the public – the Respondent was allowed to continue to drive for the company for a period of some two weeks following the 19^thof October before he was eventually suspended. In reply, Mr Butler said that the local manager in place at the Cork depot at the time was inexperienced and unaware of the correct procedure whereby he was required to report such incidents up the line. Mr Butler also confirmed, in response to a question from the Respondent’s representative, that he had not taken a written statement from the other driver that the Respondent believed had gestured at him to continue driving his van through the available gap on 19 October 2015. Nevertheless, he told the Court that he had preferred that driver’s version of events over the Respondent’s. Mr Butler also stated that his decision to summarily dismiss the Respondent was not based on the value of the damage he had caused to the company van but on his poor judgement on the date in question. He accepted that the Respondent hadn’t set out to deliberately damage company property. However, the poor judgment displayed by the Respondent, according to the witness, caused him to have concerns about public safety should the Respondent be permitted to continue driving on the company’s behalf. When asked by the Court, whether or not he had considered the possibility of dismissing the Complainant on notice, Mr Butler- in confirming that he hadn’t done so - made an admission to the effect that he wasn’t aware that this was an option open to him.

Mr Michael Farrell, Head of Operations, was the third witness called on behalf of the Appellant. This witness, as previously noted, conducted an appeal from Mr Butler’s decision to summarily dismiss the Respondent. He confirmed to the Court that prior to hearing the appeal he had been aware of the historical incidents involving the Respondent’s driving. His evidence was that the incident of 19 October 2015, in light of those earlier incidents, caused him to have great concerns about the risk posed by the Respondent’s driving for the safety of the public. In his view, the most recent incident involving the Respondent demonstrated the latter’s inability to drive a vehicle with sufficient care and judgement. The witness stated that he believed it was appropriate to consider an employee’s entire relevant employment history in the context of a disciplinary process, notwithstanding that – as in the Respondent’s case – any and all previous disciplinary warnings had lapsed by the passage of time. When asked about the 2013 options given to the Respondent and why they were not offered again, Mr Butler was adamant that it had been made clear in 2013 that those options comprised ‘a once-off offer’.

The Respondent’s Evidence

The Respondent gave evidence in relation to his efforts to mitigate his loss following his dismissal. He told the Court that in the period since October 2015 he has applied for some 23 or 24 jobs without success. He applied for various roles including that of courier, driver, general operative, cleaner and store person. The Respondent was called to a small number of interviews by named employers but no job offer ensued from any of them. He commenced on a Community Employment Scheme in May 2017 as a result of which his weekly payment from the Department of Social Protection is increased by €22.00.

Discussion and Decision

Ground or Grounds for Dismissal?

It is evident, from a comparison of the letter inviting the Respondent to the disciplinary meeting with the letter, authored by Alan Butler, setting out the outcome of that disciplinary meeting that the Respondent was in fact confronted with multiple allegations at the disciplinary meeting that had not been advised to him in advance of that meeting. It follows that the Appellant based its decision to summarily dismiss the Respondent (and continues to defend that decision) on numerous grounds not referred to at all at the investigation stage or in Mr Molloy’s letter inviting the Respondent to the disciplinary meeting. This is indeed confirmed by Mr Butler’s direct evidence to this Court.

Likewise, it would appear from Mr Farrell’s letter setting out his decision on the internal appeal, that his decision to confirm Mr Butler’s decision to summarily dismiss the Respondent was based on the company’s ‘need to recognise the duty of care we have to the public, other staff and to you yourself.’ This is also altogether different from the subject of the disciplinary process notified to the Respondent in Mr Molloy’s letter of invitation to the disciplinary meeting wherein Mr Molloy stated the allegation which the Respondent was being invited to meet was ‘failure to protect and safeguard company property’.

Gross Misconduct?

As recited previously, the incident which gave rise to the chain of events that culminated in the Respondent’s summary dismissal for gross misconduct occurred on 19 October 2015 when he accidently, and through an error of judgement, caused damage to a company van to the tune of €2,500.00. The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal inLennon v BredinM160/1978 (reproduced at page 315 of Madden and KerrUnfair Dismissal Cases and Commentary(IBEC, 1996)) wherein the Tribunal states:

• ‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

Proportionality of Sanction?

It follows, from the Court’s discussion above that the Respondent’s failure to properly judge the width of the gap through which he was attempting to drive the Appellant’s van on 19 October 2015 cannot reasonably be considered to amount to gross misconduct justifying the imposition of a sanction of summary dismissal. In this regard, therefore, the Court finds that the sanction of summary dismissal imposed on the Respondent by the Appellant was disproportionate and unwarranted in all the circumstances.

Failure to Consider Alternative Sanctions

Both Mr Butler and Mr Farrell stated in their evidence to the Court that they did not consider imposing any lesser sanction on the Respondent. In fact, Mr Butler told the Court that he was unaware that he could have imposed a sanction of dismissal on notice. It follows that the Appellant did not give due consideration to imposing an alternative and more proportionate sanction on the Respondent. Likewise, the Appellant’s failed to offer the Respondent an opportunity to contribute to the cost of the repairs to the company van necessitated by his error of judgement.

Undue Weight Placed on Previous Incidents Involving the Respondent’s Driving

As stated previously in this determination, the Respondent had had a number of incidents in the past (in 2012 and 2013) that resulted in some damage to the Appellant’s company vehicle. He received a written warning for the 2012 incident and a final written warning for the 2013 incident. Both written warnings were active for a period of 12 months from the date they were applied to the Respondent and each expired thereafter in accordance with the Appellant’s Disciplinary Policy. However, it is abundantly clear from the correspondence opened to the Court and from both Mr Butler’s and Mr Farrell’s evidence that the Appellant’s decision to summarily dismiss the Respondent was, nevertheless, informed to no small extent by those previous incidents and associated which clearly provides for the expungement of disciplinary warnings on their expiry.

For all of the above reasons the Court finds that the Respondent’s dismissal was unfair within the meaning of the Act.

Award

Having regard to the totality of evidence adduced by the Parties at the hearing, including the Respondent’s evidence in relation to his loss to date attributable to his dismissal and his efforts to mitigate that loss, the Court awards the Respondent €72,042.88 by way of compensation, being the equivalent of 104 weeks’ remuneration. As the award is made by way of compensation for loss of earnings it is subject to income tax.

The decision of the Adjudication Officer is, therefore, varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
28th July 2017______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.