ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010219
Ms Deirdre Canty SIPTU
Ms Louise O’Byrne, Solicitor.
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: 21/Mar/2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
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.
The Complainant was employed from 6th June 2002 until the Complainant was summarily dismissed without notice on 23rd June 2017. The Complainant was paid €750.00 gross per week and he worked 39 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission on 24th August 2017 alleging he had been unfairly dismissed.
Summary of Respondent’s Case:
The Respondent is part of a named Group and is involved in the distribution and sale of goods and they employ 936 employees. The Complainant was employed as a Driver from 2002 until his employment was terminated on 23rd June 2017. The Complainant received training during the course of his employment, including a Certificate of Professional Competence training on an annual basis, paid for by the Respondent. This qualification is required by law for professional bus and truck drivers and records of this training was provided to the Hearing. The Respondent has also put in place a Driver Quality, Health and Safety Handbook for its employee drivers, including the Complainant. This Handbook sets out a summary of a Drivers Role and Responsibilities.
The Complainant was involved in an incident on 8th September 2015 when he drove the wrong way down a one way street in Temple Bar, Dublin. The Complainant was involved in another incident on 17th September 2015 when the truck he was driving entered a pedestrianized area in Temple Bar and the Respondent became aware of this incident when a member of the public made a complaint. The Complainant went on sick leave on 18th September 2015 with a sore hand and he returned to work on 9th November 2015.
The Respondent’s named Transport Operations Manager was appointed to conduct a fact finding investigation into the two incidents of September 2015. The Complainant went on long term sick leave on 25th January 2016 and he returned to work on 3rd October 2016. The Operations Manager then commenced his investigation. He wrote to the Complainant on 27th October 2016 inviting him to an investigation meeting on 1st November 2016 but the Complainant’s Trade Union Representative was not available. A further meeting was scheduled for 11th November 2016 but the Complainant was unable to attend. A further meeting was scheduled for 22nd November 2016 but the Complainant was unable to attend. Another meeting was scheduled for 13th December 2016 and this meeting proceeded. The Complainant was represented and he was also provided with the CCTV Footage in relation from his Truck and also with the complaint from a member of the Public. However the Complainant and his Trade Union Representative refused to view the CCTV footage as they stated they were not happy with CCTV being used as part of any investigation or Disciplinary Process. The Complainant was informed that the investigation had been completed and he was provided with a copy and informed the report had been forwarded to the National Transport Manager to review.
The Complainant was invited to a Disciplinary Hearing 20th January 2016 and he was informed that it may result in disciplinary sanction up to and including dismissal. The Complainant’s Trade Union Rep was unable to attend and it was scheduled for 9th February 2017. The Complainant was provided with an opportunity to put his case relating to both incidents. He was provided with the notes from this meeting and a further meeting was arranged for 28th March 2017 to seek clarification on some issues. The Complainant commenced sick leave on 24th March 2017 and he returned to work on 23rd May 2017. This meeting then took place on 2nd June 2017 and he was provided with the notes from this meeting. He was advised by letter dated 23rd June 2017 that he was being summarily dismissed for gross misconduct in relation to the two incidents. He was afforded a right of appeal.
The Complainant appealed the decision to dismiss on 26th June 2017 to the named Chain Director. The Basis of the appeal was that the incidents happened almost two years previous – dismissal was extreme – the incidents are common practice amongst truck drivers – and that he was singled out. The appeal hearing took place on 13th July 2017 and the Complainant was represented by SIPTU. The outcome letter issued on 2nd August 2017 and confirmed the Complainant’s dismissal.
The Respondent referenced a number of Decisions of the Labour Court, Employment Appeals Tribunal and the Circuit Court to support their argument that they had acted in a reasonable manner at all times in the process.
Summary of Complainant’s Case:
The Complainant worked as a Truck Driver for some 15 years. A camera was inserted into his truck which the Complainant and his Trade Union, SIPTU objected to . During a meeting with HR they were informed that the Complainant was under the microscope due to an incident he had earlier in the truck.. The Respondent refused to remove it. SIPTU stated that the Complainant was not disciplined for this incident. The Complainant was on bereavement leave and on his return he was presented with two letters, one was a written warning for clipping the cctv camera in a named Store while he was reversing and the second was an invite to a disciplinary hearing. Following this the Complainant was on sick leave.
On his return from sick leave he was invited to a meeting concerning a complaint from a member of the Public. This concerned the Complainant driving down a one way street and that he drove in a pedestrianised area of Temple Bar, Dublin. The Matter was investigated and the outcome resulted in the dismissal of the Complainant on 23rd June 2017.
SIPTU argued that the Complainant admitted to the allegations immediately but he gave explanations for his behaviour. They also attached a photograph which they argued showed the Complainant could drive in the area within a certain time limit. He also confirmed he had parked on the kerb which was to allow other drivers to pass him. They alleged the Complainant was the only employee disciplined for this as all the drivers did it but he was the only one with a camera in his truck. The sanction of dismissal was disproportionate and a lesser penalty of a final written warning was more appropriate.
The Union referenced a number of Decisions of the Employment Appeals Tribunal in support of their argument that the dismissal was disproportionate.
The Complainant stated at the Hearing that he had been in receipt of Jobseekers Benefit from June until 5th March 2018 and this was confirmed in a statement from the Department. The Complainant is now working part-time, 5/6 hours per day and he is paid €250.00 a week. The Complainant is seeking reinstatement.
Findings and Conclusions:
On the basis of the evidence and written submissions from both Parties, including supporting documentation I find as follows –
Both Parties confirmed that the Complainant had been provided with the appropriate training required by law as a Driver of a Truck. The Complainant did not deny the allegations made relating to the incidents of 8th and 17th September 2015 when the Complainant drove down the wrong way in a one way street – and when he drove in a pedestrianised area and mounted the kerb.
Both Parties confirmed that these incidents occurred in September 2015 but that as a result of extensive sick leave by the Complainant the investigation was delayed and issued in January 2016. Both Parties also confirmed that the Disciplinary Process commenced in March 2017 concluding in June 2017 with a decision to dismiss issued on 23rd June 2017. Again the delay was as a result of sick leave and the unavailability of the Complainant’s Trade Union Representative. There was an appeal process and the investigation, Disciplinary and Appeals Process were all conducted in accordance with S,I, 146/2000 and all were conducted by named separate individuals.
The only mitigating circumstances advanced by the Complainant was that all drivers do what he did despite the fact that it is against the law.
I find that the Respondent conducted the investigation, disciplinary and appeals process with due regard for fair procedures and natural justice and the Complainant was afforded representation and he was provided with all the notes from the varied meetings, including CCTV footage which he refused to examine.
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.
In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare the complaint of unfair dismissal is not well founded.
Dated: 27th June 2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Unfair Dismissal – allegations not disputed by the Complainant – relied on argument that dismissal was disproportionate. Complaint fails – Fair Procedures applied to the process of investigation, disciplinary and appeals process.