ADJUDICATION OFFICER DECISION
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant was employed as a Driver from 1st November 1998 to 19th March 2019. He was paid €1,150.00 per week. He has claimed that he was unfairly dismissed and did not receive minimum notice.
1)Unfair Dismissals Act CA 27872-001
Summary of Respondent’s Case:
The fact of dismissal is not in dispute, the claimant was fairly dismissed following a lengthy disciplinary process. The dismissal resulted wholly from the conduct of the claimant who breached health and safety procedures by dangerous driving in the form of driving at twice the speed limit in a fuel terminal.
The claimant was employed as fuel lorry driver. He delivered petrol and other fossil fuels to petrol stations. Fuel drivers fill their lorries at the Joint Fuel Terminal (JFT) in Dublin Port and from there they deliver the fuel to petrol stations, the airport and other sites. The JFT stores over 60,000 tonnes of combustibles including Jet-A1 fuel, Petrol, Ethanol and Diesel.
Given the high-risk nature of the site, the operators have a strict health and safety regime for the safety of all. The speed limit within the JFT is 30km, which is clearly sign posted throughout the terminal and all drivers using the terminal have to undergo annual training
In October 2018, the respondent received three complaints relating to the claimant;
Using a mobile phone in an unauthorised area on October 9, 2018.
A near miss accident in the JFT fuel terminal on October 12, 2018 and racial abuse of another driver.
Failure to follow a delivery instruction and being rude to a customer on October 12, 2018.
Following these complaints, a decision to suspend the claimant was made, with pay, to allow an investigation into these serious allegations. The claimant was met on the morning of October 19, 2018 to inform him of the complaints and set out the five serious allegations arising from same. They informed the claimant that during his suspension he was to; not to attend or carry out work, not to contact any customer, supplier, employee (other than his representative) not to work for others, remain available to attend meetings
The suspension was confirmed in writing that day and he was provided with a copy of the disciplinary policy. The letter confirmed the five allegations under investigation;
Near miss customer report dated 9th October 2018 from CLH in which we have been advised that you were using a non-ATEX mobile phone in a hazardous are during the off-loading of fuel at Dublin Airport.
A customer complaint dated 12th October 2018 from a named Service Station in which the Office Manager has complained about the way in which you delivered fuel on 11th October 2018 which appears to have been contrary to the specific instructions detailed on the delivery advice note.
Instruction from Operator of Depot dated 18th October 2018 that you are not assigned to deliver product to named Service Station again and that you were rude to staff on site.
Instruction from the JFT Terminal Manager on 15th October that your access card to the JFT has been locked out due to an incident that occurred on 11th October 2018 in which we have been advised that you were driving dangerously at speed and overtook another driver which resulted in a near truck collision.
A complaint from a named driver dated 16th October 2018 that further to the aforementioned incident you verbally abused and racially harassed him.
Shortly after his suspension the claimant, contrary to the terms of his suspension, contacted a manager at the Depot instructing him to make a DATA access request on behalf of the claimant for all CCTV footage of the JFT terminal. The respondent informed the claimant that they could not make a DATA access request on his behalf nor was the respondent the DATA controller of the CCTV from the JFT Terminal. The claimant was reminded of the terms of his suspension and told not to contact his colleagues further.
A letter dated October 24, 2018 invited the claimant to an investigation meeting on October 31, 2018 to be chaired by EC. The letter:
Confirmed the suspension
Informed him of the purpose of the meeting
The possible outcome of the meeting
His right to representation
Enclosed a copy of the disciplinary procedure
Enclosed copies of all complaints
Set out the allegations against the claimant
The claimant attended the meeting accompanied by his SIPTU representative. The claimant began the meeting by claiming he was being victimised by the manager and referred to a recent WRC appeal he had brought.
The claimant's response to the first allegation (using a mobile phone in hazardous area) was that he was not using a phone in an unauthorised area; his explanation was "seemingly they thought they saw me."
Regarding the second allegation, the claimant confirmed that he did not follow the delivery instruction when making the delivery. He claimed that the delivery note would have been unsafe to follow and risked contamination. He claimed he had reported these issues to the Fleet & Driver Improvement Manager after he had arrived at the named Service Station.
The next point of discussion was the allegations arising out of the alleged incident in the JFT Terminal on October 15, 2018. The parties watched footage from the Forward Facing Camera from the claimant's truck showing the incident. The claimant refused to discuss the footage from the FFC and complained about not being given the CCTV of the JFT site. He refused to answer any questions or discuss the allegation or the footage. It was then explained to the claimant that the FFC footage was the only footage being used at that time and invited him to comment. He still refused.
The meeting was adjourned at the request of the claimant who wanted to take further advice. He was given a copy of the footage to take with him. An agreed transcript of the meeting was made.
The Investigation meeting was due to reconvene at 11:00am, November 6, 2018. The invitation reiterated that the JFT CCTV footage was not forming part of the investigation. It went on to advise that if the claimant did not respond the decision would be based on the information available.
The meeting was cancelled at 9:07am, November 6 by the claimant who claimed he was sick, no doctors certificate was presented. The meeting reconvened on November 12, 2018, his SIPTU representative again accompanied the claimant.
The claimant was again shown the footage and invited to put forward his version of events. He declined to do so. His position was "I'm not refusing but I will not comment on it till I get that footage [CCTV from JFT terminal]. EC repeatedly explained that the respondent did not have the JFT CCTV. That the footage being considered at that time was the FFC footage and this was the claimant's opportunity to put forward his version of events. He refused to answer the question of what speed he was driving at and whether or not he had approached another driver. The claimant said, “based on advice I got I’m not prepared to comment, I’m not refusing.”
The claimant also demanded that he be allowed to cross-examine the witness or have the investigator pose questions on his behalf. When the investigator agreed to this the claimant refused to put forward any questions or identify the witness in question. An agreed transcript of the meeting was made.
EC interviewed the Fleet & Driver Improvement Manager who confirmed that the load the claimant had been instructed to deliver to the named Service Station had been safe. He further advised that if the claimant had safety concerns, the proper procedure is to report it. He further advised that the claimant had not reported safety concerns to him.
The manager was also questioned regarding the mobile phone allegation. He confirmed receiving the report that a Respondent driver had been seen on a mobile phone and had asked the claimant if it was him.
A telephone interview was conducted with the Office Manager of the named Service Station. She confirmed the claimant had delivered the wrong fuel, when she queried the mistake, he told her that it was unsafe and "they had been doing it wrong". She described the claimant, as "grumpy" and she would not allow him on site again. In a follow up EC took information regarding the delivery.
Also interviewed was the Driver Instructor, EC sought his expert view on the FFC footage. He described the actions of the claimant as "dangerous," "unprofessional", "not taking into consideration the speed limit and his surroundings" and "not considering his own safety and the safety of others." He also pointed out that the claimant was driving over the speed limit, at times driving at more than twice the limit.
The General Manager was also interviewed. EC sought information from the manager as to the standard operational procedures. He also confirmed that the instructed loading for the named deliverywas deemed as being safe and that if the claimant was concerned regarding the safety of this procedure, he could have delayed delivery in order to get additional instruction. At the very least he was required to report his concerns to management. For the avoidance of any doubt, twenty-five different drivers have made 101 deliveries since January 2018 without incident.
Regarding the mobile phone incident, Mr M advised that at the time of the alleged incident the claimant was the driver on site. On the JFT incident Mr M confirmed that the claimant had not reported any incident to the respondent.
Mr C decided to give the claimant another opportunity to put forward his version of events. He sent the claimant copies of all documents gathered in the investigation. The meeting was scheduled for 1:00pm, November 23, 2018. The claimant was asked to confirm his attendance by 4pm, November 22. For the purpose of absolute clarity, the invitation stated;
I must notify you that if you fail to attend the meeting or notify myself of a genuine reason as to why you are unable to attend then the investigation will proceed in your absence, in which case you will be advised of the outcome in writing. Please be aware that if you are sick, I will require evidence from your doctor and a medical report stating why you are unfit to meet with me and participate in this meeting.
At 9:52am, November 23, 2018 the claimant sent a text message to Mr C informing him that he would not be attending the meeting "due to a long term illness problem."A doctor’s certificate dated November 23, 2018 stated that the claimant "will be unfit to resume duty for a week and then will have major neck surgery."No explanation was provided as to why the claimant could not meet with Mr C.
The claimant remained on sick leave until January 10, 2019. His suspension was reinstated and the terms of his suspension were reiterated.
Mr C wrote to the claimant on January 24, 2019. He informed the claimant that he had completed his report and as per his previous correspondence the findings were based upon the information to hand. The report comprehensively sets out the process followed, the information gathered, and the parties involved.
On the first allegation, using a mobile phone in an unauthorised area. Mr C could not establish whether or not it was true.
On the named service station incident the following findings of fact were established;
The claimant was aware of the specific instructions and chose not to follow it.
He did not inform anyone of the decision, seek permission or advice.
The claimant was aware of the process and chose not to follow it
He did not report his health and safety concerns
The third and fourth allegations (relating to rudeness) were not upheld.
The allegations relating to the JFT incident were upheld. The report made clear that these conclusions were based upon the FFC footage, the witness statements and also made clear the claimant had declined four opportunities to put forward his version of events.
General Manager Mr D considered the report and he wrote to the claimant on February 13, 2019 informing him that the three allegations would be the subject of a disciplinary hearing chaired by Mr H. The letter set out the precise allegations that would be considered. The meeting was rescheduled to allow the presence of the claimant's representative.
The meeting took place on March 7, 2019. At the commencement of the meeting the claimant's representative raised several objections claiming that the claimant had not been allowed to state his case despite repeatedly refusing to do so. Regarding the named service station allegation, the claimant confirmed that he had unilaterally changed the order without informing anyone. He further confirmed that he did not report his health and safety concerns and that he did not think he had done anything wrong.
On the JFT allegations the claimant again sought to obfuscate the issue by reference to CCTV footage. At this point it should be noted that the claimant had never told anyone why this footage was necessary or what it would show. At last the claimant put forward his version of events.
He now claimed that he had swerved to avoid the other vehicle and his foot got caught on the accelerator. The claimant further claimed that it was he that was the victim of abuse from the other driver. The meeting was adjourned until March 19, 2019.
The reconvened meeting commenced with another attempt by the claimant and his representative to frustrate the process by again objecting to the investigation process on the basis that the claimant had refused to engage in that process. They continued to claim that the claimant's refusal to put forward his version of events as a breach of fair procedure.
The claimant now advised that he had been in direct contact with the management company regarding the incident; this was another breach of the terms of his suspension. He now accepted and confirmed that he broke the speed limit but would not acknowledge he had done anything wrong and instead blamed others. The FFC footage was viewed again and the claimant could not explain why it did not support his version of events. The claimant simply denied that the speed shown on the camera was correct.
He confirmed he had not reported any incident and he also confirmed his breaking the speed limit and that for his actions "[he] should be commended."
The claimant showed no regret or understanding of the failings on his own part even as he was confirming he breached health and safety rules. The outcome of the disciplinary was to dismiss the claimant with immediate effect. The claimant had five days to appeal this decision.
Ten days later, the claimant appealed his dismissal. The appeal was heard despite it being 'out of time'. The appeal letter is a lengthy document that relied on procedural ground, primarily attacking the investigation.
The appeal meeting was arranged for May 15, 2019 at the earliest available date that the claimant's representative was available. The appeal was heard by Ms H (Director of Change Programs).
The meeting commenced with the claimant reading out a prepared nine-page document. Once again this document amounted to an unsubstantiated attack on everyone else involved in the entire process. The claimant continued to refuse to even countenance any failing on his own part.
Ms H discussed each point of appeal at length.
The outcome was issued on June 14, 2019. Ms H dealt with each and every point of appeal. Detailing the issues raised and her decision on each one. Her decision was to uphold the decision to dismiss.
The fact of dismissal is not in dispute and the complainant's dismissal was both substantively and procedurally fair. It is well-established case law that the standard for assessing the fairness of a dismissal is that of a reasonable employer. The issue before the Adjudicator is not to reinvestigate the substantive issue but rather to ask the question; how would a reasonable employer have dealt with the situation.
The complaint of dangerous driving in the JFT concerned serious breaches of Health and Safety on the part of the claimant. It was reasonable and responsible to suspend the claimant to allow an investigation into such a serious allegation.
The investigation followed every rule of natural justice and fair procedure. The claimant was provided with all evidence that was being considered in the investigation. He was allowed representation and given several opportunities to put forward his own version of events. He refused to discuss the JFT incident with the investigator. Mr C gave him several opportunities to put his version of events forward and he flatly refused.
The claimant made attempts to confuse matters by reference to CCTV and interviewing witnesses who were not a part of the investigation. This does not constitute a breach of natural justice. The claimant was asked to put forward his version of events and refused to do so. Why the claimant could not simply tell Mr C what happened on October 12, 2018 remains a mystery. He was able to put his version forward in the disciplinary meeting, notwithstanding the fact it is not supported by the FFC footage.
All aspects of the disciplinary investigation and disciplinary process were conducted in accordance with SI 146 of 2000 and Company Union Agreements; the claimant was given the opportunity to state his case. The claimant was afforded the right to representation at all meetings and availed of this. The claimant was informed of the possible disciplinary sanctions at all stages of the disciplinary process.
The fact that the claimant drove at twice the speed limit is not in dispute. It is important to remember that this took place in a fuel terminal that contains several thousand gallons for combustible fuels. The claimant not only breached health and safety rules in the JFT, he also put himself and others in grave danger. The claimant has never even acknowledged that he did anything wrong. In fact he thought he should be "commended" for his actions.
This is of the greatest significance in assessing the reasonableness of the respondent's decision. It was not simply the claimant had acted in breach of his training and procedure; it was that he saw nothing wrong with his actions. He thought he was correct and would do it again. The respondent simply did not and does not trust the claimant to safely drive a petrol lorry. We cannot accept the moral and financial liability of putting a driver whom we consider to be a danger to himself and others on the road.
The importance of trust to the employment relationship has been emphasised on many occasions by the Tribunal. For example, in Audrey Burtchaell v Premier Recruitment International Ltd T/A Premier Group, UD1290/2002, (although different circumstances to the case today) the Tribunal stated:
“Having conducted an investigation into the situation the respondent was satisfied that the trust and confidence which has long been established by this Tribunal to be fundamental to proper working conditions and is necessary for the correct administration of any reputable business, to be virtually destroyed to such an extent that the Appellant could no longer be retained by the respondent. Accordingly the claim fails.”
We wish to open the following passage from Noonan J’s judgment in Bank of Ireland v Reilly  IEHC 241: 38. It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the 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 - see Royal Bank of Scotland v. Lindsay UK EAT/0506/09/DM.
39. I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v. Purcell  23 ELR 189, where she commented (at p. 4):
Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift  IRLR 91 and the following statement of Lord Denning MR at page 93:
‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’
It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”15
We submit that when faced with a petrol lorry driver, who drives at twice the legal speed limit in a fuel terminal and sees nothing wrong with this, dismissal falls within the ‘Band of Reasonableness' set out by Noonan J.
In the appeal against the dismissal, the claimant's representative set out several leading cases on dismissal. We will address the application of these cases here;
Concepta Brebner v Clann Mor Residential and Respite Ltd UD1613/2014; this case refers to the "great care" an employer should take before making such a serious decision as to dismiss. We submit that the respondent went to great lengths to conduct a fair and thorough process. It was claimant who sort to delay and abuse the process.
Frizelle v New Ross Credit Union  IEHC 137; SIPTU is seeking to rely on four point test set out in that case. If that test is applied to the within facts we find;
No allegation has been made that the matter was other than a bona fida complaint, nor has it been claimed that the respondent had any other agenda.
The allegation against the claimant was put factually, clearly, and fairly without any innuendo or hidden inference or conclusion.
The claimant was given the opportunity to state his case at all meetings.
The decision was based on the balance of probability and flowed from factual evidence and took account of the explanations offered.
As stated above, in the facts and circumstances of this case dismissal was a decision proportionate to the complaint.
We have no doubt that the claimant will continue to claim he was denied the opportunity to respond in the investigation. This position is unsustainable, as we have shown. There remains the matter of the meeting of November 23, 2018. The sole purpose of this meeting was for the claimant to finally put forward his version of events in the JFT. He did not attend; he did not provide an explanation why he could not attend. The note from his doctor states that his surgery was taking place the following week so this does not explain his absence.
We submit that fair procedures were followed in very difficult circumstances. The claimant himself repeatedly breached the terms of his suspension by contacting employers, clients, customers and third parties without permission of the respondent. He also failed to make himself available for meetings.
In Musgrave Limited v Roman Dabrowski UDD1927 the Court held;
“In terms of positive use of procedures, the Respondent was clear in communicating what was the alleged offending behaviour to the Complainant, all evidence was shared with him, he was afforded the right to make his case at all stages, he was afforded the right to representation and he was given a right to appeal the decision to dismiss.
Therefore, while it might be said that the procedures were not perfect, there is no basis, in the view of the Court, to determine that they were so flawed as to render the Respondent’s actions to be unfair. As noted on p.281 in ‘Redmond on Dismissal Law’ (Bloomsbury, 3rdEdition), by reference to the cases of Meath County Council v. Creighton UD 11/1977andCarr v. Alexander Russell Ltd (1976) IRLR220, ‘An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee’.
In the instant case, the Court is satisfied that, applying the test of reasonableness, as defined in British Leyland UK Ltd. V. Swift, (1981), IRLR91 as ‘. If a reasonable employer might have dismissed him, then the dismissal was fair’, the Respondent acted reasonably in this case such that any procedural imperfections were not fatal to the Complainant’s ability to make his case and to defend himself.
In all ways it is submitted that the dismissal was substantively and procedurally fair. The complainant's dismissal resulted wholly from his own conduct. Health and Safety is the responsibility of all staff. The complainant's actions put himself and his colleagues in danger. We ask the adjudicator to find in our favour and hold that the complaint is not well founded.
Summary of Complainant’s Case:
The Complainant was summarily dismissed from his employment without notice on 19th March 2019. He is seeking the following redress under the Unfair Dismissals Acts: to be reinstated to his position and to be compensated for his loss of earnings.
On 19th October 2019 he was called to a meeting with Mr. M Manager, Fuels Distribution and was informed that he was being suspended from work: “to allow a full and detailed investigation to be carried out into allegations of disciplinary offences” His access card was also locked out from the JFT. He was invited to an Investigation meeting on 31st October 2019 to discuss 5 allegations against him. The Investigation was carried out by Mr. C & Ms.M, HR Representative. He was represented by the SIPTU Shop Steward. In relation to the first three allegations, he had been provided with the relevant evidence and was therefore able to respond accordingly. Two of the allegations referred to an incident in the Joint Fuel Terminal in Dublin Port which occurred on 11th October 2018. He was provided with five email statements related to 11th October which referred to CCTV evidence of an incident.
In the two emails they referred to CCTV of the alleged incident. In the first email he stated “from reviewing the CCTV it can be seen that the Driver comes around the corner from the JFT West Yard ‘and goes on to detail the alleged incident. In his second email he also refers in detail to the incident and CCTV footage. They also stated that they had watched 30 minutes of CCTV with the Supervisor. Later on 15th November 2018 a statement was taken from MM also referred to CCTV footage but state that ‘no drivers were shown any CCTV footage that day” . He had requested to see the CCTV on 25/10 and 26/10 but the request was denied. On 31/10 he advised Mr. C that he also wanted to also view the CCTV footage of the alleged incident. The HR representative said that they would not wait 28 days to receive the footage. Mr. C confirmed that he was entitled to see the CCTV footage and advised that he could request it from the Data Protection officer in the Depot Management. He was therefore not able to provide a response to the incident on 11th October as he had not been provided with all the relevant evidence. The meeting was adjourned until 6th November, unfortunately he was ill and unable to attend. It was then rescheduled until 12th November. At the meeting he again advised that he wanted to see the CCTV footage so that he could present his response to the complaints. He confirmed he was not refusing to answer questions on the incident, but he should be afforded the opportunity to review the evidence. The meeting was then adjourned until 23rd November 2018. The invite letter for the 23rd November meeting advised that if he was unable to attend, he would have to provide medical evidence. He was due to have surgery around that time contacted Mr. C by phone and advised him that due to illness he was unable to attend. He then sent the required medical report from his GP by email and that he would be out of work for 8 weeks due to the requirement for neck/spine surgery. Mr. C responded on 30th November and wished him well with the surgery. On 9th Jan 2019 (8 weeks later) he emailed Mr. C to advise he was that he was fit to return to work and to seek a rescheduled meeting. Mr. C did not respond. He again emailed Mr. C on 15th January to forward him an email from another company Manager LA, who he had requested answers to questions on several issues relating to the allegations against him. Mr. C acknowledged the email and said he would get back to him. From 23rd November up to 25th January he was not informed of any decision regarding the Investigation. On 25th January he received a letter dated 24th January from Mr. C advising the meeting of 23rd November had gone ahead in his absence. He also received the Investigation outcome report. The outcome of the Investigation was as follows:
Allegation 1-No findings : Allegation 2-Upheld : Allegation 3-Not upheld
Allegation 4-Upheld : Allegation 5-Upheld
Allegations 4&5 were upheld based on evidence that Mr. C had collected. However, Mr. C did not question any of the 3rd parties regarding these allegations or challenge the statements provided. He was understandably shocked and upset by this unfair decision. On 25th January he emailed Mr. C & Company People Services to appeal the decision to progress the Investigation in his absence, despite having provided the requested medical evidence. However, the appeal request was not considered, and the matter was then progressed to a Disciplinary hearing.
He had requested on multiple occasions the CCTV footage from the company and from the JFT but had been advised that he would have to request the CCTV through the Depot’s Data Protection Officer. He put in a data access request for the CCTV. In February 2019 they sent him a USB with CCTV footage however it did not contain footage of the incident on 11th October as set out in the statement by Mr. SO B. He sought clarification regarding the footage he had been provided with as it does not show the incident. He received a reply from SW, on 11th February which stated : “I understand that an incident involving you is alleged to have occurred at the terminal on the day in question, however CCTV cameras are not in use in that area of the terminal.” He sought further explanation regarding the fact that the statement from Mr. O B had referred to CCTV footage of the alleged incident. In the response from the Depot Company it states: Mr. O B has not made any claims. Mr. O B has confirmed that the alleged incident was not captured on CCTV, therefore we were not able to provide it to you as it does not exist.” Therefore, there was no CCTV of the incident of 11th October 2018.
He received a letter dated 13th February 2019 to advise that Mr. DH had been appointed to conduct the Disciplinary hearing, which after being rescheduled from 22nd February took place on 7th March 2019. At the hearing, he provided evidence that on receipt of the CCTV footage from the Data Controller, it had been confirmed that there was no CCTV footage of the alleged incident of 11th October. He argued that the basis of the allegations was false as both Mr. O B & Mr. B referred to CCTV, but in fact there was no CCTV footage. He gave a full account of the incident on the 11th October. As he drove up towards Bay 8 at the correct speed, the driver who was queueing in Lane 7 flicked on his indicator to change lanes into Lane 8. This was a breach of the JFT queueing procedures by the other driver. He swerved to avoid a collision and there was an accidental increase in speed for a few seconds. Mr. H confirmed that he would not have wanted him to hit the other truck and confirmed that ‘no one wanted a collision’ when he explained the incident. He also provided evidence to Mr. H that the speeds recorded on the FFC’s could not be relied on as be inconsistent if not calibrated with the GPS. The meeting was adjourned until 19th March 2019. In the invite letter of 14th March, Mr. H stated that he had considered all the information presented at the hearing to make a fully considered decision. SIPTU wrote to Mr. H set out that he would be raising further points at the second disciplinary hearing.
Second Disciplinary hearing 19th March 2019
He contended that the use of the Forward-Facing cameras, was a breach of an agreement on the use of the cameras because Mr. McN had shown the FFC footage to Mr. O B without his input being sought. He believes that the FFC footage was shown so that an allegation could be constructed against him by Mr. McN and Mr. O B. He explained the incident and that he had reported the incident to Michael Began on the morning in question. (Mr. Tony McNamee has also been informed of this at the Suspension meeting. He has not been interviewed at the Investigation hearing on the advice of Mr. O B. He also again refuted that he had been verbally abusive to Mr. B, and that in fact Mr. B had been abusive to him. He stated that a full investigation had not been carried out and he had not had an opportunity to question or challenge any of the 3rd parties in the matter. Mr. H. adjourned then the meeting to review the evidence and revert with a decision. Mr.H & Ms. SMcE HR returned in about twenty minutes. Mr Handcock advised Mr. Barry that Allegation 2 regarding the loading issue was closed. In relation to Allegation 4&5, Mr. H advised him that he was summarily dismissed for gross misconduct on the grounds of ‘not applying basic Health & Safety rules.” The formal notice of dismissal was sent to him on 29th March 2019 and set out the grounds of dismissal and the appeals procedure. He appealed his dismissal in a letter to the respondent on 29th March 2019. He was advised that the person appointed to hear the appeal Mr. D O’ Neill. then advised SIPTU that he was not hearing the appeal.
After a series of contacts with People Services, it was confirmed that Ms. SH, would hear the appeal with NK, HR. Due to length of time it took to schedule an appeal hearing, Mr. Barry instructed SIPTU to refer his dismissal to the WRC.
The appeal hearing eventually took place on 15th May 2019 and Ms. H and Ms. K represented the respondent. He went through his substantial grounds for appeal as per the appeal letter and expanded on the appeal grounds in detail. The appeal outcome was then issued on 14th June (nearly one month later) and Ms. H upheld the decision to summarily dismiss him without notice.
Section 2 states, “the company promotes consistency and fairness in the treatment of its employees and the purpose of these procedures is to emphasise and encourage improvement in the conduct and performance of our employees”; “When action is taken that action is fair and reasonable and that employees are given every opportunity to present their case’”
Section 3 states, “Employees will only be subjected to disciplinary action once there has been an investigation of the facts and they have had the opportunity to present their side of the case”.
Section 4 Line Manager Conducting a thorough investigation
Section 8 Disciplinary Hearings, The employee will have the opportunity to present their case in full, to call any witnesses whom the employee feels appropriate and to present written evidence
a) to the reasonableness or otherwise to the conduct (whether by act or omission) of the employer in relation to the dismissal and
b) to the extent (if any) of the compliance or failure to comply with the employer in relation to the employee, in relation to the procedures referred to in section 14(1) of this Act, with the provisions of any Code of Practice referred to.”
‘One of the most serious issues facing a person with significant consequences for that person is being dismissed from her / her employment. The person may never be able to work again and in certain circumstances be ostracized by the community. An employee may be unable to secure employment again. It therefore behooves an employer to take great care before dismissing an employee especially where that employee will be looking for employment again in a specialized employment sector’.
‘Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct:
Put very simply, principals of natural justice must be unequivocally applied.’
“the nature and extent of the inquiry carried out by the Respondent prior to the decision to dismiss the Claimant and to the conclusion arrived at the Respondent that, on the basis of the information resulting from such enquiry the Claimant should be dismissed.
This requires the Tribunal to consider whether the employee was made aware of all the allegations and complaints that formed the basis of the proposed dismissal, whether the employee had adequate opportunity to deny allegations or explain the circumstances before the dismissal was taken, whether the employer believed that the employee had conducted himself or herself as alleged, whether the employer had reasonable grounds to sustain the belief, and if so, whether the penalty of dismissal was proportionate to the alleged conduct.”
It is his contention that the procedures followed by the respondent were in breach of the principles of natural justice and fair procedure as set out in SI146 and the decision to dismiss him is unfair, inconsistent and unreasonable.
Breaches in Disciplinary Procedure in breach of SI146 & Respondents Disciplinary Policy
a) Suspension on 19th October
He contends that his suspension was unfair and inconsistent. He is aware of 14 other disciplinary incidents involving drivers (as referenced by Mr.McN in his statement), but these drivers were not suspended. Some of the incidents involved substantial damage to property and other serious disciplinary issues but no other driver was dismissed as a result. The email evidence from company Manager LA confirms his contention that he was being treated unfairly in the Disciplinary process.
Unfair Investigation Procedure
The Investigation process was not conducted in line with company’s own policy.
The Investigation was not conducted in line with SI146 Code of Practice on Grievance & Disciplinary Procedures and breached his rights to fair procedures and natural justice.
The Investigation was concluded without affording him the opportunity to fully outline his position, to provide relevant evidence, to examine statements or put questions to witnesses.
The Investigator concluded the process and issued findings without him being present at the meeting on 23rd November due to illness and despite him providing the requested medical evidence relating to his illness. The company were fully aware that he had to have surgery and would be out of work for 8 weeks. The explanation given by Mr. C for this decision was not in line with the criteria set out in the original invite letter.
He was not provided with CCTV evidence that other parties had allegedly viewed which formed the basis of one of the complaints used during the Investigation, despite requesting it on 31st October. It was not provided to him until February 2019 after the Investigation had concluded.
It was confirmed that there was no CCTV footage of the incident and therefore the original allegations were factually incorrect and not credible,
The Investigator did not conduct interviews with several key witnesses e.g. S O’B /DB/BS /MM /M B and relied on 3 statements. Therefore, the evidence was not challenged or investigated further despite the statements contradicting each other and referring to evidence not provided to him. Mr. B was not questioned in detail about the alleged incident he was involved in.
The Investigator did not interview the complainant Mr. DB regarding the alleged verbal abuse. There was again no opportunity for him to challenge this statement or put questions to Mr. B.
Mr. B’s witness statement cannot also not be viewed as credible as it referred to CCTV footage.
He provided important evidence from LA. However, Ms. A’s was not interviewed, or her evidence properly considered at the Investigation stage.
The Investigation process was fatally flawed and therefore the outcome was also flawed.
It is his contention that the Disciplinary process was unfair and in breach of SI 146 and the respondent’s own policy
In the respondent’s policy is states that the Disciplinary Managers are supposed to take an impartial view of allegations/complaints before them and they are supposed to take all circumstances into considerations to allow for a fair and consistent outcome.
He was not afforded his rights to ask questions at the Disciplinary Hearing and Mr. H advised him was not there to answer questions.
The minutes of the first disciplinary hearing were only provided on Friday 15th March. The disciplinary letter of 15th March stated that Mr. H had fully considered all the evidence and indicated that he had made a decision. It was only after he and SIPTU raised objections and advised that we would be raising further issues at the second meeting, that Mr. H allowed further points to be raised by him. This would indicate that Mr. H had already reached a decision before the 2nd hearing on 19th March.
This was further demonstrated by Mr. H when after a two-hour meeting with him where detailed points and procedural issues were raised, he returned in less than twenty minutes to confirm he was being dismissed.
From the date of dismissal, it took the respondent nearly six weeks to organise an appeal hearing. He does not believe that the Appeals Manager gave full consideration his grounds of appeal or the detailed evidence he provided to show the flawed procedures at the Investigation & Disciplinary stages. In fact, Ms. H also made an additional finding against him and accused him of reckless behaviour which was not part of the original allegations.
He contends that the sanction of dismissal is severe and disproportionate in the circumstances.
The principal of proportionality which has been long established by the Courts in relation to unfair dismissal has also been completely disregarded by the Respondent. He had 21 years of unblemished accident free driving service inside the terminal and outside on the road on the Depot contract. This was not taken into consideration. Should the Respondent have found, through a fair procedure, that the he had engaged in some level of misconduct, it was open to the Respondent to consider a range of sanctions that could be applied. Therefore, the sanction of summary dismissal, given his length of service, and previous employment history was grossly disproportionate to the allegations that were made against him.
The case law in this area provides that an Adjudicator is not required to decide if it would dismiss in the same circumstances or substitute its own view for the employer’s view. The appropriate approach is to ask was it reasonably open to the employer to the make the decision it did and was it proportionate and within the band of reasonable responses to the extent the Respondent had substantive grounds to dismiss the Claimant.
As can be seen from the facts set out above, the Respondent’s decision to dismiss the him was an unreasonable one and the dismissal was grossly unfair.
He is seeking the following redress under the Unfair Dismissals Acts:
Findings and Conclusions:
I find that the Respondent received complaints concerning the Complainant and carried out an investigation.
I find that there were five allegations and the first allegation, that of using a mobile phone in an unauthorised area, there were no findings.
I find that the allegation concerning the named service station was upheld. I note that he accepted that he didn’t follow the delivery instructions.
I note that the third and fourth allegations (relating to rudeness and racial comments) were not upheld.
The allegations relating to the Terminal Depot incident of speeding and overtaking another truck which resulted in a near truck collision were upheld.
I note that the Depot incident was deemed by far the most serious.
I note that these matters became the subject of a disciplinary hearing.
I note the conflict of evidence regarding the Site CCTV and the Front Faced truck camera footage (FFC).
I find that the Respondent relied upon the Front Faced Truck Camera (FFC) footage only.
I find that it was established that he had been driving at a maximum of 34Kms in a 15Km zone.
I note that the Complainant alleged that the FFC was faulty despite accepting that there were times when he accepted it was correct.
It is difficult to establish in his mind, when it was correct and when it was faulty.
I find that I accept the evidence of the Respondent concerning the FFC footage.
I find that driving at a maximum of 34Kms was a very serious matter and it had the potential to be a disaster given where this occurred.
On the balance of probability, I find that the Complainant was speeding in that zone, had exceeded the allowable speed for safety reasons and so drove dangerously.
On the balance of probability, I also find that he tried to overtake another truck, which was a most serious matter and posed a very grave danger to safety in that Depot.
I find that this was a very serious breach of health and safety rules.
I find that this was a most serious matter and warranted a very serious response from the Respondent.
In view of the potential seriousness of the matter and the Complainant’s abject failure to accept any responsibility, I find that the decision to dismiss was substantively fair.
I find that the Complainant was advised of the allegations made against him.
I find that he was suspended with pay pending an investigation.
I find that the Respondent carried out a detailed investigation and issued a report.
I find that a number of allegations were not upheld, namely the use of telephone and rudeness and bad behaviour.
I note that the main allegation was that of dangerous driving in the Deport and a serious breach of health and safety rules.
I find that the matter was escalated to a Disciplinary hearing.
I find that the disciplinary hearing was carried out by a person unconnected with the fact-finding investigation.
I find that at all times the Complainant was aware of what he was accused of, he was given the right to representation.
I find that the Complainant constantly sought information, CCTV footage, not being relied upon by the Respondent, also witness statements from people not being relied upon by the Respondent.
I find that the Complainant failed or was unable to attend at disciplinary investigation meetings that led the Respondent to make a decision to dismiss him in his absence, despite their written warning of that possibility.
I find that the Complainant was facing into a spell of hospitalisation and the Respondent should have postponed that meeting until he had recovered, despite the fact that he had not been cooperative with the investigation.
I find that the Respondent was wrong to dismiss him in such circumstances.
I find that he was given the right to appeal the decision to dismiss which he did but not within the allowable period.
Therefore, I find that this renders the dismissal procedurally unfair and so renders the dismissal unfair.
However, I find that the Complainant has made a substantial contribution to his dismissal.
I find that he was constantly uncooperative.
I find that continuously sought to delay the process and to frustrate it. His actions of obfuscation were applied throughout the process.
I find that he could have handled himself considerable better and could have sought the right to question his accusers in a less confrontational way which might have been more acceptable to the Respondent. However, I find that the Respondent relied upon facts especially from the FFC which could not be overturned through any form of cross examination.
I find that he showed no remorse at all and in fact sought to be commended for his actions.
I find that his constant acts of obfuscation have led me to conclude that he was becoming unmanageable.
I find that his actions of driving recklessly and a breach of safety and health rules and procedures have also contributed substantially to the decision to dismiss.
I am satisfied that he has tried to mitigate his loss.
I find that the most appropriate redress is compensation.
I find that re-instatement or re-engagement is not appropriate because I have concluded that the bond of trust has been broken.
I find that his substantial contribution to his dismissal must be taken into account when establishing the quantum of the award.
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.
I have decided that the dismissal was fair on substantive grounds.
I have decided that the dismissal was unfair on procedural grounds.
I have decided that this renders the dismissal unfair.
I have decided that this claim is well founded.
I have decided that compensation is the most appropriate redress.
I have decided that the Respondent should pay the Complainant compensation of €12,000 (10 weeks approx) within six weeks of the date below.
2)Minimum Notice & Terms of Employment Act, CA 27872-002
Summary of Complainant’s Case:
The Complainant was summarily dismissed without notice and is seeking his entitlements to eight weeks pay under the Minimum Notice & Terms of Employment Act 1973, as he had over 15 years’ service with the respondent.
Summary of Respondent’s Case:
Findings and Conclusions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the Respondent has breached the terms of this Act.
I have decided that this claim is well founded.
I have decided that the Respondent should pay the Complainant the amount of €9,200, being eight weeks’ notice, within six weeks of the date below.
Dated: 4th December 2019
Workplace Relations Commission Adjudication Officer: