ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012224
Parties:
| Complainant | Respondent |
Anonymised Parties | Driver | Transport Company |
Complaint:
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-00016177-001 | 07/12/2017 |
Date of Adjudication Hearing: 26/04/2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed from 22nd March 2013 until the employment was terminated without notice on 9th June 2017. The Complainant was paid €390.00 gross per week plus subsistence when he travelled outside Ireland. He was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. He referred a complaint to the Workplace Relations Commission (WRC) on 7th December 2017 alleging he had been unfairly dismissed. The fact of dismissal is not in dispute.
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SUMMARY OF RESPONDENT’S POSITION.
The Respondent is a leading Company in the Transport Industry. The Complainant was employed as a Continental Truck Driver on 22nd March 2013. On 10th January 2015 the Complainant allegedly sustained an injury to his thumb at Holyhead, Wales. He was advised by the Respondent to seek medical attention at the Hospital in Bangor, North Wales, which the Complainant refused to do. Some days later while the Complainant was in Germany he again complained of his thumb but again despite the Respondents request to seek medical attention he refused to do so. It was some 2 months later when he sought medical attention which led to the Complainant being on sick leave from 24th March 2015 to 17TH May 2015 and 3rd August 2015 to 4th August 2015. He was paid while on sick leave.
In January 2016 the Complainant contacted the Compliance and HR Manager, named, requesting Force Majeure Leave to take care of his sick wife. It is Company policy that this leave can only be given for emergencies. It was suggested to the Complainant he take annual leave which he refused and indicated that he would have to take sick leave as he would be paid. The Complainant submitted medical certificates to cover 3rd February 2016 to 21st February 2016 and 20th May 2016 to 30th May 2016.
In July 2016 the Complainant sought time off to care for his wife. He was requested to put this in writing but did not do so. He submitted medical certificates to cover the following periods – 28th July 2016 to 12th August 2016 – 6th October 2016 to 13th October 2016 – 17th October 2016 to 20th November 2016 and 7th November 2016 to 23rd November 2016. All this sick leave was stated to be thumb injury. He submitted a return to work certificate from his GP that he was fit to return to work on 30th November 2016.
On 1st March 2017 the Respondent received a complaint from their Planning Department that the Complainant had failed to board a ferry as scheduled which resulted in a late delivery and expenses to the Respondent. The Complainant failed to use the correct out of hours phone numbers and he failed to possess a valid passport. The Complainant was requested by letter dated 1st March 2017, to attend a meeting on 2nd March 2017 to discuss the issues which were outlined to him and he was informed of his right to be accompanied by a work colleague as per the procedures. The Complainant accepted that all three issues were his fault. The Respondent received a further complaint from the Planning Department on 8th March 2017 that he had again failed to board the scheduled ferry. There was also an ongoing issue with the Complainant contacting the wrong out of hours phone and a further issue concerning parking and rest periods while driving between Holland and Ireland on 7th March 2017. He was requested to attend a formal meeting on 9th March 2017 where the issues were discussed with the Complainant and again where he admitted he must follow procedures. He was issued with a First Written Warning to remain for 12 months.
On 21st April 2017 the Respondent received a complaint where a Driver had reported that the Complainant was seeking to drive his truck through the wrong gate at Holyhead almost colliding with a car. Security at the Truck Park notified the police who attended at the Park and breathalysed the Complainant which was negative. However, he was advised not to drive but to get some sleep. On learning of the incident the Respondent contacted the Complainant to ascertain if he was in a position to continue with his duties and he confirmed he was.
The Complainant met with named Managers on 8th May 2017 to discuss the incident in the truck park. The Complainant stated he could not remember much of the incident but that it had occurred as a result of a change to his medication. Because of health and safety concerns the Respondent sought a letter from his GP to confirm that the prescribed medication would not interfere with his driving. This was furnished on 18th May 2017. There was a formal meeting with the Complainant on 26th May 2017 arising from a letter to him dated 22nd May 2017. At this meeting the Complainant indicated that he was taking sleeping tablets which may have had an effect on his driving. He was advised of the Respondent’s health and safety concerns and indicated to him that the incident of 21st April 2017 was serious and could amount to gross misconduct.
The Respondent met again with the Complainant on 26th May 2017 and he was informed he was to be issued with a Final Written Warning for a period of 12 months. He was also requested to sign a document confirming he would not drive on the day following take the sleeping tablet prescribed by his GP. He did so.
The Respondent became aware of a further incident on 30th May 2017 when the Complainant reversed his truck into a loading bay and there was also a complaint that he did not follow the instructions with regard to refuelling. The Complainant was involved in a further incident on 31st May 2017 when the truck he was driving collided with a crash barrier in Ghent, Belgium. The Complainant left the scene of the accident, failed to report it to the police and he failed to report it to the Respondent as required in the Company Procedures. On 1st June 2017 the Complainant failed to follow clear instructions and he arrived at the incorrect loading destination resulting in delay and expense for the Respondent. He was also involved in another incident at this location when the truck he was driving collided with a bollard which he did not report.
The Complainant was invited to attend a meeting on 6th June 2017 in relation to 3 incidents in 4 days – failure to report to the office or to the local police – failure to follow refuelling procedures – failure to follow load instructions – driving/resting hours – failure to follow instructions in a timely and efficient manner. He was advised of his right to be accompanied by a work colleague. He contacted a named Manager by phone and told her he was not going to waste his time travelling to Dublin if he was going to be fired. He was informed no decision had been made, they wanted to talk to him. He confirmed twice by email on 6th June 2017 that he would not attend the meeting. The Respondent contacted the Complainant by email on 7th June 2017 informing him that no decision had been made and agreeing to reschedule the meeting to another day and time. He did not seek an alternative meeting.
The Complainant did not attend the meeting and it proceeded in his absence. A decision was made to dismiss the Complainant and the Complainant was advised by letter dated 13th June 2017. He was advised of his right of appeal. The Complainant emailed a named Manager on 18th June 2017 and stated that he had not attended the meeting because of a GP appointment. In a phone conversation on 20th June 2017 the Complainant was advised that the time for an appeal had been extended by another 5 working days from 20th June 2017. He did not appeal but confirmed he would be taking legal advice and requesting a letter for the Department of Social Protection. The Complainant sent a sick cert to the Respondent dated 21st June 2017 referencing stress related illness from 10th June to 24th June 2017. He also sought the reasons for his dismissal and a copy of the Grievance Procedure. These were sent to the Complainant and again confirming his right to appeal. The Complainant indicated by letter dated 7th July 2017 that he wished to appeal. As the time allowed for the appeal had by then expired the decision to dismiss the Complainant stood.
The Complainant was afforded all fair procedures and natural justice during the Disciplinary Process. The Complainant failed to attend and failed to appeal the decision within the expanded time allocated.
SUMMARY OF COMPLAINANT’S POSITION.
The Complainant stated that there had been no problems in his employment until he had the thumb injury. He stated that he had accepted the First Written Warning and the Final Written Warning issued to him as he accepted all that had been put to him in relation to the issues raised. He stated that he did not appeal these warnings for the same reason. He stated that he was coping with his wife’s illness and he was a little stressed but he did not want to brag about in in his employment.
He stated that he did receive the letter dated 6th June 2017 inviting him to a formal meeting in relation to six identified issues. He stated he did not attend this meeting for financial reasons. He stated he would have to travel 4.5 hours by Bus to attend the meeting and 4 hours back from the meeting and he stated that he felt a decision had already been made to dismiss him. The Complainant accepted he had been offered to have the meeting rescheduled to another date and time more suitable to him but he confirmed that he informed his Employer he did not want to travel to Dublin to be dismissed. He stated that he was informed of the outcome of this meeting by letter dated 13th June 2016 and the decision to dismiss him. The Complainant stated that his P45 followed this letter. He stated that after a week he contacted his Employer and informed them that he wanted to keep his job. He sent an email to a named Manager on 18th June 2017 in which he stated that he did not attend the meeting on 9th June 2017 as he had an appointment with his GP but that this appointment had been moved to the following week. He outlined the pressures of his wife he was under and asked that after he sees his GP that he would be back on the road, in his truck and earning money. The Complainant sent a further email to a named Manager on 20th June 2017 seeking his contract of employment and a letter for Social Welfare. The Respondent emailed a response on 20th June 2017 in which it refers to a conversation of the same date with the Complainant in relation to an appeal of the dismissal in which he was afforded a further 5 days to appeal the dismissal.
The Complainant confirmed he did not appeal the dismissal. He stated he felt hard done by and that all he wanted was to keep his job. He stated that he had been hospitalised for one week but he could not recall when and his legal representative at the Hearing stated that he was unaware of this.
The Complainant stated that he had been in receipt of Illness Benefit from the Department of Social Protection since his dismissal but had commenced employment some 5 weeks prior to the Hearing on 26th April 2017 where he works 6 days/5 days alternative weeks and he is paid €140.00 per day. The Complainant was requested to forward a statement from the Department and either his Contract or payslip from his current Employer post the Hearing. The Complainant’s Solicitor forwarded a letter dated 25th May 2017 enclosing a statement from the Department of Social Protection which confirms that the Complainant was in receipt of Occupational Injury Benefit/Illness Benefit from 1st June 2016 to 17th May 2018.
The Complainant and his legal representative confirmed at the Hearing that the Complainant had sought legal advice on 14th July 2017 and that a personal injury claim had also been initiated to the Personal Injuries Assessment Board in December 2016.
FINDINGS AND CONCLUSIONS.
On the basis of the evidence from both Parties, including a written submission from the Respondent and questioning by the Adjudication Officer I find as follows –
The issues identified by way of submission to the Hearing by the Complainant in relation to the issues of 2015 and 2016/2017 which gave rise to the issuing of a Final Written Warning to the Complainant on 26th May 2017 for a period of 12 months is not relevant to the complaint of unfair dismissal and has not been taken into account in reaching my Decision except in so far that at the time of the dismissal the Complainant was in receipt of a Final Written Warning.
It is clear from the evidence, not disputed by the Complainant, that he was involved in a series of incidents commencing on 30th May 2017 when his truck reversed into a loading bay and he did not follow instructions in relation to refuelling – on 31st May 2017 when the truck he was driving collided with a crash barriers in Ghent, Belgium and when he fled the scene, failed to notify the local police and failed to immediately report the incident to the Respondent in accordance with the Procedures – On 1st June 2017 the Complainant failed to follow his instructions and arrived at an incorrect loading bay and he was also involved in another incident when the truck he was driving collided with a bollard and again this incident was not reported by the Complainant to the Respondent.
By letter dated 6th June 2017 the Complainant was invited to a formal meeting on 9th June 2017. This letter set out the six issues to be addressed, who was to chair the meeting. He was informed of his right to have a work colleague accompany him as per the Company Policy set out in the Employee Handbook which the Complainant confirmed he had received with his Contract of Employment. He was also informed that the meeting may lead to Disciplinary Action and that if he failed to attend this may give rise to a decision being made in his absence. I note that the Complainant informed the Respondent he would not be attending the meeting. I further note that the Complainant gave a number of differing reasons as to why he did not attend. At the Hearing he stated that his reasons were financial and that he would have to spend 8.5 hours travelling from Donegal to this meeting and back and that he felt the decision had already been made. In his email dated 18th June 2017 to a named Manager he stated that he had an appointment with his GP but that the appointment had been moved.
The Complainant confirmed that he had been offered alternatives and that a further meeting would be scheduled on another date and time. This was not accepted by the Complainant. The Complainant gave no reason for this refusal.
The Complainant was afforded an appeal of the dismissal to a named Manager within five working days. The Complainant did not appeal but later contacted the Respondent on 20th June 2018 and the Respondent offered him a further 5 days in which to lodge his appeal but again he did not do so. I note that the Complainant did seek to appeal by letter dated 7th July 2017 stating that due to personal reasons, unspecified he could not appeal.
I note the evidence of the Complainant to the Hearing that he had been in receipt of Benefits from the Department of Social Protection up until he commenced employment some 5 weeks before the date of the Hearing which was on 26th April 2017. However I note that in the Statement from the Department of Social Protection dated 17th May 2017 and forwarded by the Solicitor for the Complainant on 25th May 2017 that the Department confirms the Complainant was in receipt of Benefits (Illness/occupational injury) up until the date of the letter i.e. 17th May 2017.
I note that the Solicitor for the Complainant in the letter of 25th May 2018 states as follows – “We refer to the Work Contract (Conditions) from (the Complainant’s) new employer and confirm that our client is currently having difficulty retrieving same but hopes to have same with you soon” This was not forwarded to me up until the end of June 2018 when I commenced writing my Decision..
I find that the Respondent was very reasonable in how they afforded the Complainant all opportunities to present his defence at the Hearing of 9th June 2017, which he refused to attend and by offering him an opportunity to reschedule this meeting which again he refused. He was offered a right of appeal which he did not exercise within the five working days which was again extended by another five days and again he did not lodge an appeal. I find that the Complainant was afforded all fair procedures and natural justice both in relation to the Hearing of 9th June 2017 and the appeal.
DECISION.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
On the basis of the evidence and my findings/conclusions above I declare this complaint is not well founded. |
Dated: 13.8.18
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Unfair Dismissal – Complainant failed to attend formal investigation hearing or a rescheduled Hearing – did not appeal – complaint of unfair dismissal not well founded. |