Complainant

Respondent

Anonymised Parties

Complainant

Motor Trade

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008313-001

22/11/2016

The Complainant was employed as a vehicle inspector from   the 1^st of October 2007 to the 2^nd of June 2016. He   alleges that he was unfairly dismissed by the Respondent contrary to the   terms of the Unfair Dismissals Act, 1977. He filed a complaint with the   Workplace Relations Commission on the 22^nd of November 2016.

On the 18^th of January 2016, the Respondent   received a complaint from an independent vehicle repair business through the   Respondent’s e-mail integrity line. The complaint related to the fact that he   had been asked to examine a vehicle that a member of the public had purchased   the day before and which had been tested by the Complainant at the test   centre on the 15^th of January 2016 and re-tested at the same test   centre on the next day. In his opinion. “both the front lower ball joints had   excessive play especially the near side which had an extreme amount of play   to the point that I would consider the car to be unroadworthy.”

He had contacted the Respondent to enquire whether the NCT   certificate was genuine and expressed concern that that “vehicle was passed   when it should not even have been allowed to leave the test centre.”

On the foot of this complaint the Respondent immediately   started an investigation and requested the vehicle owner for permission to   examine the vehicle. Mr T.M. auditor, remained the vehicle on the 21^st   of January 2016 and he provided the Respondent with his report dated the 22^nd   of January 2016.

Mr. M concluded that the “2 front ball joints were badly work, there was an oil leak, the exhaust pipe was broken and a rear brake pipe was corroded” with the ball joints “showing a large amount of lateral movement at the road wheel” and these should have caused a fail of the test three days earlier. Mr. M also considered the vehicles previous test results and noted that after a test on the 31st of July 2015, the vehicle had failed because of suspension and mileage was noted as being 199,641, whereas it had been noted as 137,446 during the test 3 days earlier.

By letter dated the 11^th of February 2016, Mr.   McH wrote to the Complainant outlining his concerns and enclosing the VIR   test report, the complaint from the independent garage owner and the internal   auditor documents and report. The Complainant was interviewed on the 19^th   of February 2016 during which Mr. J McH put the test issues to him. The   Complainant claimed that he remembered the specific vehicle and denied that   there was any connection between him and the vehicle presenter or that he had   any prior association with the vehicle.  

By letter dated the 1^st of March 2016, Mr.McH   provided the Complainant with the notes of the meeting.

By letter dated the 4^th of April 2016, Mr.McH   informed the Complainant that he conducted further investigations on foot of   the first meeting and deemed it appropriate to convene meetings with two   other members of staff on the 24^th of March 2016 and on the 30^th   of March 2016 respectively and a second investigation meeting with the   Complainant on the 8^th of April 2016. On the 3^rd of May   2016, mr.MH further called to the independent repairer, Mr. L to confirm   details of his complaint.

The issues discussed at this subsequent meeting included   the assignment of 8 vehicles (including the subject matter vehicle) to the   Complainant in breach of company procedures. However the Respondent chose not   to proceed further in relation to these issues. At the second investigation   meeting, the Complainant denied that he had anything to do with the vehicle   or the garage owner.

By letter dated the 3^rd of May 2016, Mr. McH   wrote to the Complianant and informed him that the investigation had concluded   and that the file was being passed to Mr. M.S. in order to assess whether any   disciplinary sanction was necessary.

By letter dated the 4^th of May 2016, Mr. S   wrote to the Complainant and convened a disciplinary meeting, which was   rescheduled to the 26^th of May 2016.

The disciplinary meeting proceeded on the 26^th   of May 2016. The Complainant denied that the ball joints on the vehicle were   worn and in fact there “were brand new shocks on the vehicle”. It must be   noted that the Complainant actually confirmed checking the ball joints and   noting that they were apparently not defective at that stage. Mr. S put it to   him that “yet within three days it was proven different and prior to   inspection also”.

Mr. S concluded the meeting and wrote to Ms. E.B, HR manager by e-mail dated 31st of May 2016, in which he concluded that the   content of the complaint was confirmed by the internal auditor and that he had,

“…confirmed with TG that such defects are obvious to the   inspector, unlikely to be concealable by the presented and represent a   serious roadworthiness concern and on this basis it is my decision that Mr.   W’s contract of employment be terminated in light of his negligence in   carrying out the test.”

He further stated;

“It should be noted that the vehicle in question saw a   reduction in its odometer reading of over 60,000 miles between the test   carried out in September versus the test carried out by Mr. W in January and   that the vehicle had recently changed ownership with the purchaser of the   vehicle of the belief that the vehicle was a good purchase on the basis of   the recently passing NCT. It appears that the seller of the vehicle provided   an inaccurate address to the purchaser.”

By letter dated the 2^nd of January 2016, Mr. S   wrote to the Complainant and he explained his decision;

“I wish to advise you that unfortunately it is my decision   to terminate your contract of employment with the company with effect from   the 30^th of June 2016 (4 weeks notice) in light of your failure to   identify the serious defects on the above mentioned vehicle on the 15^th   of January 2016. Your failure to identify the serious defects on this vehicle   is regarded as nothing other than negligence by the company.”

The Complainant appealed the decision to dismiss him but   this decision was upheld on appeal.

This Disciplinary Procedure is clear in its terms and the   Respondent was permitted to dismiss the Complainant given the fact that if it   is accepted that the vehicle had the same ball joints in situ during the test   and then during the independent garage owner’s test and the Respondent’s   internal auditor test, then the vehicle was passed by the Complainant on ball   joints when it was patently dangerous and negligent to do so. It should be noted that the Complainant   states in the WRC Complaint Form that he believes that the vehicle presented   to him had good ball joints in place.   He also stated in his investigation meetings that he remembered the   specific vehicle and that it had brand new joints in place. If this were correct, and given the fact   that the vehicle was tested on 15^th January 2016, re-tested on 16^th   January 2016, sold to the new owner on 17^th January 2016 and   tested by the independent garage owner on 18^th January 2016, the   Complainant is contending that the seller of the vehicle took out the ball   joints from the vehicle, replaced them with brand new ones and then took   these out again within 24 hours before selling the vehicle on with   newly-installed defective ball joints.   It is respectfully submitted that this is entirely implausible. It should be borne in mind that the vehicle   was a 2004 BMW 3-series with in excess of 100,000 miles.

Without prejudice to the Company’s contention that the   dismissal was not unfair it is respectfully submitted that the sanction was   proportionate in the circumstances of the case where the safety and / or   integrity of the Company’s testing services test could be seriously   undermined. It should be noted that   the Complainant had a live Final Written Warning on his personnel file at the   time of the dismissal.

The following is a summary of the Complainant’s   submission:

The employer stated that the termination of his employment   was due to a failure to identify defects during a test. It was stated that he allowed a vehicle to   pass a test with faulty ball joints in the front suspension on the 15^th   January 2016. Subsequently, the vehicle was sold on the 18^th   January 2016 and a complaint was made shortly thereafter. The vehicle was   inspected by a company internal auditor on 22^nd 2016. The Disciplinary Process commenced on 11^th   February 2016. He was dismissed from   his employment and the decision on termination of his contract was   unsuccessfully appealed. It is his view that the vehicle was definitely   tampered with because the mileage was approx. 137,400 at the test on the 22^nd   January 2016 and on the previous text on the 10^th September 2015   the mileage reading was 199,961.   Therefore, it is highly possible and highly likely that the ball joints   were tampered and were swapped back after the test. It is common practice   that cars are sometimes prepped for the test and later returned to their   original poor condition. Therefore, having regard to all the circumstances   there was no substantial ground justifying the dismissal and he believes that   the dismissal was unfair.

The vehicle was tested by the Complainant on the 15^th   January 2016. It was re-tested again on the 16^th January   2016. It was sold to the new owner on   the 17^th January 2016 and tested by an independent garage on the   18^th January 2016.

I do not accept the explanation provided by the   Complainant that the vehicle presented to him on the 15^th January   2016 had good new ball joints in it and that the most likely explanation was   that the seller of the vehicle took out the worn ball joints from the vehicle,   replaced with brand new ball joints and took them out again within 24 hours   before selling the vehicle with newly installed defective ball joints. This explanation is implausible.

Based on the evidence presented at the hearing and on the   balance of probability I recommend that he complaint is not well-founded and   therefore fails.