FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : MUSGRAVES WHOLESALE PARTNERS (REPRESENTED BY ARTHUR COX) - AND - JAMES MAHON (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No:ADJ-00010219 CA-00013292-001
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 19 July 2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 26 February 2019. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by James Mahon (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00010219 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that he was unfairly dismissed by his former employer Musgrave Limited t/a Musgrave Wholesale Partners (hereafter the Respondent). The Adjudication Officer held that the complaint of unfair dismissal was not well founded.
Background
The Complainant commenced employment with the Respondent on 6thJune 2002 as a professional Driver. His employment came to an end by way of dismissal on 23rd June 2017. Dismissal is not in dispute and in those circumstances, it is for the Respondent to show that the dismissal was fair.
Respondent’s case.
The Complainant was involved in an incident on the 8thSeptember 2015 when he drove the wrong way down a one- way street in Temple Bar in Dublin city centre. He was then involved in another incident on the 17thSeptember 2015 when the truck he was driving entered a pedestrianised area in Temple Bar. The Respondent became aware of the incident when a member of the public made a complaint.
The complainant went out on sick leave from the 18thSeptember 2015 till the 9thNovember 2015 with a sore hand.
The Respondent’s Transport Operations Manager Mr Carroll was appointed to conduct a fact- finding investigation into the two incidents that occurred in September 2015. The Complainant went on long term sick leave on 25thJanuary 2016 and was absent until the 3rdOctober 2016. On his return the investigation commenced, and he was invited to a meeting on the 1stNovember 2016. Due to the unavailability of parties the meeting did not go ahead until the 13thDecember 2016. At the meeting the Complainant was presented with the CCTV footage from the truck in relation to the first incident and the complaint from the member of the public in relation to the second incident. The Complainant was accompanied by his Trade Union representative at the meeting. The Complainant declined to view the CCTV footage as he was not happy that CCTV footage was being used as part of the investigation process.
By letter dated 3rdJanuary 2017 Mr Carroll wrote to the Complainant advising that the investigation was completed and informed him that the report was being sent to the National Transport Manager to review. A copy of the report was provided to the Complainant.
By letter dated 17thJanuary 2017 Mr Hickey National Transport Manager wrote to the Complainant inviting him to a disciplinary meeting on the 20thJanuary 2017. The Complainant was advised that the meeting may result in disciplinary action up to and including dismissal and was provided with a copy of the Respondent’s Disciplinary Procedure. Due to the unavailability of the Complainant’s representative on the 20thJanuary 2017 the meeting was rescheduled for the 9thFebruary 2017.
The disciplinary hearing took place over two dates the 9thFebruary 2017 and the 28thMarch 2017. Mr Hickey in his evidence to the Court stated that the Complainant did not dispute that the two incidents occurred. In relation to the second incident the Complainant raised some issues with the road signage. It was Mr Hickey’s evidence that he went down and looked at the road signage and also sought clarification from Dublin City Council in relation to same. Dublin City Council confirmed that it was a pedestrianised area at all times and it was Mr Hickey’s position that the signage clearly indicated that too. The Complainant again declined to view the CCTV footage in relation to the first incident. It was Mr Hickey’s evidence to the Court that in coming to the decision to dismiss he first checked what training the Complainant had received and was satisfied that he had received all the appropriate training and that his training was up to date. He considered the mitigating circumstances put forward by the Complainant that 1) other drivers did the same thing and 2) that he was afraid his delivery would be late. He did not accept these as mitigating circumstances as the actions of the Complainant had been in beach of the Road Traffic Acts.
Mr Hickey informed the court that he did consider a warehouse role for the Complainant. However, this would require the use of heavy plant machinery and that the warehouse had its own internal traffic management system. Mr Hickey felt that based on the incidents that had occurred and the fact that the Complainant did not seem to appreciate the seriousness of what he had done, it would not be safe to give him a role in the warehouse. On that basis Mr Hickey came to the decision that dismissal was the only viable option available.
By letter dated 23rdJune 2017 Mr Hickey advised the Complainant that he was being summarily dismissed by reason of gross misconduct and set out in the letter the reasons for same. The Complainant was also advised that he could appeal the decision.
Mr O Neill Supply Chain Director with the Respondent heard the appeal. The grounds of appeal submitted were a) that the incidents had happened in 2015 and it was now 2017 b) decision to dismiss was extreme c) the incidents he was being dismissed for were common practise amongst all drivers and d) he was being singled out by management.
Mr O’ Neill in his evidence to the Court stated that he considered the four points. The delay in the main arose from the fact that the Complainant had two long absences and not from a delay on behalf of the Respondent. While it was asserted that it was common practise among other drivers to do what the Complainant had done no evidence was produced to support that assertion. It was Mr O’ Neill’s evidence to the Court that the Complainant did not seem to appreciate the seriousness of the incidents and could offer no real explanation for same. It was Mr O’ Neill evidence he decided to uphold the sanction of dismissal based on the fact that the incidents were so serious, and the Complainant did not appreciate the seriousness of the incidents.
It is the Respondent’s submission that they have followed a fair procedure and that the Complainant had been given every opportunity to put forward his case and that the termination of his employment was not unfair.
Complainant’s case.
It is the Complainant’s case that he admitted to the incidents immediately and gave explanations for his behaviour. His explanation was that at the time there were road works and if he had driven the long way around he would have been late for his delivery’s. It is the Complainant’s case that he wasn’t the only driver who drove the wrong way down one- way streets and or drove in pedestrian areas of Temple bar. It was his contention that he was being penalised as he was the only one at the time who had CCTV camera in his cab.
The Complainant’s representative informed the Court that the Complainant preferred driving rural routes as opposed to the city routes and felt he had been put on city driving even though management knew he did not like it. The Complainant’s representative did not dispute that the Respondent had followed their disciplinary procedure but argues that dismissal was an extreme sanction and a lesser sanction should have been imposed.
The Law
Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:
- 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:- (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
- (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
Issue for the Court
Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.
Discussion
In this case the conduct of the Complainant is not disputed therefore the question to be considered by the Court is whether the Respondent acted in a reasonable manner in coming to the decision to dismiss. The test for reasonableness was set out in Noritake(Irl)Ltd v Kenna(UD 88/1983) as follows:
- 1) Did the company believe that the employee misconducted himself as alleged?
2) if so, did the company have reasonable grounds to sustain that belief?
3) if so, was the penalty of dismissal proportionate to the alleged misconduct?
- “that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”
Determination
The Court determines that the complaint is not well founded. The decision of the Adjudication Officer is upheld. The Court so determines.
Signed on behalf of the Labour Court
Louise O'Donnell
MK______________________
1 April 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.